The Success of Police Reform: Second Thoughts on Barry Friedman’s Unwarranted: Policing Without Permission, and His Broader Enterprise

Introduction

Unwarranted, by Barry Friedman,¹ is an important and accomplished book. It makes a powerful case for democratic control over police surveillance and searches through legislation and administrative rules enacted by political bodies with direct control over police organizations. A first reading led me to agree with the book’s major thesis and virtually every point. If this were all, it would make for a very short Comment. To add something of value to this book symposium, I discuss Unwarranted in the context of Friedman’s enterprise, of which the book is a part, from my particular vantage point. As for Friedman’s enterprise, Unwarranted is framed by his role as founder and director of the Policing Project at New York University Law School, ² and as reporter for the American Law Institute’s “Principles of the Law: Policing” project,³ as well as by co-authored law review articles that closely track the book.⁴ I write as a criminal justice professor in a liberal arts college, possessing a law degree and a doctorate in criminal justice, who entered academic criminal justice a half-century ago when this social science discipline was new.⁵

On first reading, it was not clear whether Unwarranted should be categorized as a book about policing or one focused primarily on Fourth Amendment issues—a puzzle that led me to question my invitation to join this book symposium. It makes sense to include a criminal justice academician among legal scholars to discuss a policing book, but policing is not my specialty.⁶ The majority of Unwarranted concerns search and seizure, an area I have taught and written about, but I imagine that my half-century of teaching criminal procedure to undergraduates is invisible to law review editors.⁷ Of course, Unwarranted can focus both on policing and criminal procedure, making my puzzlement trivial. Still, the book’s emphasis has some bearing on the larger question posed in this Comment, which is the likely ultimate success of the NYU Policing Project and the American Law Institute (“ALI”) effort. In this light, it is worth asking whether the goals of the book and the projects are primarily to impose order on important Fourth Amendment issues or whether they seek to join a larger police reform movement. Friedman’s total enterprise is a fascinating example of justice entrepreneurship that could be the subject of a case study. Although such a case study is beyond the scope of this Comment, contemplating it is a valuable gateway to thinking about the reformist goals of Friedman’s enterprise and their likelihood of success.

Part I of this Comment describes the themes of Unwarranted, outlines the NYU and ALI efforts, and sets the stage for analyses of Friedman’s enterprise. Part II considers the prospects of Friedman’s enterprises’ longrange success. Given my vantage point, I have noted how policing issues have been addressed by legal scholars and in the world of social science and policing scholarship.

I. Barry Friedman’s Enterprise

A. The Book

Unwarranted is divided into three parts.⁸ Perhaps a more descriptive or more complete title would include “Democratic Policing,” the title of Part I. Unwarranted captures Friedman’s overarching analysis of the problem, i.e., police surveillance and searches occur without authority. Democratic policing captures Friedman’s overarching solution: the problems of contemporary policing can be set aright by mobilizing the “will of the people” through legislation and administrative rules, especially at the local level, that are arrived at after robust notice and comment. This thesis is profoundly democratic: “Ultimately, we have to recognize—and take responsibility for—the fact that we are the police. What is done by the police is done by all of us.”⁹

The first part of Unwarranted (including the Preface, the Introduction, and Part I) presents as a book about policing in general. The thesis that democratic governance of policing is needed is made clear at several points. The Preface notes that the level and kind of democratic governance, and rules that guide virtually all governmental action is largely absent from policing. Friedman stresses that “this is not a book about the failures of police,” ¹⁰ although the book does record shocking examples of police misconduct. Instead, blame for misguided police behavior, resulting from the lack of rules and guidance, is laid at the feet of the courts and “the rest of us.”¹¹ The Introduction explains the scope of the problem. The police killings of unarmed blacks, which erupted as a major political issue after events in Ferguson, Missouri, in 2014, is the tip of an iceberg consisting of eight million searches annually and the exponential increase in surveilling all Americans with advanced technology wielded by police and intelligence services. Readers are reminded that police kill about one thousand civilians and conduct more than fifty thousand SWAT raids a year. Police also use or misuse their powers to supplement departmental budgets and municipal coffers with large sums of money mulcted through traffic enforcement and forfeiture laws, typically by over-enforcing drug laws in ways that weigh heavily on the poor and minority communities. Friedman views these not as separate policing issues but as examples of a failure to regulate police: “[c]all the problem policing without permission.”¹²

Chapter 1, a potted history of American policing, is shaped by Friedman to stress that policies guiding police departments have always been shrouded in secrecy. In the early days of municipal police organizations, officers answered to their political handlers, who did not simply tolerate, but also directed their work in collecting graft and suppressing rival politicians. The reforms of the professional era from the early 20th century to the 1960s did more to insulate policing from government control than to instill true professionalism. The decades-long professionalism project crashed in the 1960s with inner city riots sparked by police-citizen confrontations. Friedman views the decades of work to install a community policing ethic as a stalled effort¹³ exposed by the post-Ferguson turmoil resulting in “yet another president appoint[ing] yet another committee—the Task Force on 21st Century Policing.”¹⁴

The object lesson of Chapter 1 is captured by a tale about the stingray Mighty efforts to keep this surveillance secret gave way to citizen and bipartisan efforts in Congress to bring the technology to light, finally forcing the Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”) to require warrants for the technology’s use. “Time and again we’ll see this. When there is transparency and disclosure, policy changes. That’s how it is supposed to be in a democracy. Trust is built on transparency. And accountability requires it.”¹⁵ A second reading of the book raises an intuition that goes back to my question about the central focus of Unwarranted. If its goal is to corral law enforcement excess related to searches and seizures, Friedman’s enterprise is more likely to be crowned with success than if the larger goal is to reform the police generally.¹⁶

Chapters 2 and 3 fill out Friedman’s analysis of the reason for Unwarranted policing: legislatures will not legislate, and courts cannot judge. Legislatures “don’t see any advantage”¹⁷ in creating rules that limit law enforcement behaviors because police and prosecutors are politically organized, while those ordinarily subject to police actions are the least organized. “It’s no secret that the heaviest burden of aggressive policing falls disproportionately on the shoulders of minorities, on the less well-off.”¹⁸ This matter is exacerbated by society’s greater concern for the victim and the fear of crime. ¹⁹ Friedman discounts police internal rule-making as a movement that gained a glimmer of hope in the 1970s, but “fizzled”²⁰ and finds that many operative rules of police action are ones that the public would disavow if they were better known. ²¹ On the whole, “[i]t is an immense failure of democracy that policing is left so ungoverned.”²²

Regarding the courts, in Chapter 3 Friedman argues that courts do not have the capacity to regulate the police in detail. At best, the courts can declare that police behaviors are or are not consistent with the Constitution. Friedman notes that court-generated rules are “not the same as democratic control of policing. Indeed, the courts are even less democratically accountable than the police themselves.”,²³ The Warren Court’s due process revolution is deemed a “golden moment” (I agree) that was necessitated “because no one else would do it” and was needed “to eliminate gross inequality in American society” (I agree), and for “these two reasons [] explain[s] why so much of this criminal justice ‘revolution’ was surprisingly popular” (what?!).,²⁴ In any event, the exclusionary rule—which cannot control cases where no arrest has been made—is set aside by judges where police violations are deemed technical and defendants are deemed bad men. Supreme Court precedents “effectively grant[] permission to the police to keep using the tactic in all subsequent cases.”,²⁵ Money damage lawsuits, with grants of qualified immunity for police, have proven ineffective in stemming cases of egregious policing. These limits are undermined “by fundamental changes in how policing takes place today”,²⁶ as technology is ushering in a world of pervasive surveillance.,²⁷

The general solution to policing without permission is laid out in Chapter 4, “Fostering Democratic Policing.” The heartening story in Chapter 4 is exemplified by the many American communities and a few states—in the aftermath of the Ferguson, Missouri, demonstrations that were met with an armed police presence—that exercised bipartisan democratic activism to limit and control police deployment of military-style force. ,²⁸ Such democratic, rule-based activism expanded to police use of drones and traffic-stop consent rules. To Friedman, this activism stirs up possibilities.

The list of policing issues untouched in most places by any sort of public conversation and popularly vetted rules is long: the use of informants, the protocols for consent searches, the circumstances under which stop-andfrisk is appropriate, vehicle chases, the retention and collection of images from public cameras, deployment of roadblocks. One could go on and on.²⁹

The chapter urges that courts prod legislatures to take action by signaling the kind of legislation that would authorize police activity and by narrowly construing executive authority exercised without legislative mandate. I applaud this goal and desire that a more democratic rule-based world of policing come into being. But democracy is an unwieldy system that includes many voices and is ultimately driven by public opinion. Friedman knows this. “Once the public cares, and the media is engaged, the legislators can no longer avoid the issue: they are forced to take positions, to listen, and perhaps to act.”,³⁰ The real question is whether a regime of democratic rule-based policing can make it on America’s political stage.

I will not go into detail in regard to Part II (Constitutional Policing) or Part III (Twenty-First Century Policing) of Unwarranted. These chapters deal with topics that are taught in criminal procedure courses. Part II covers issues related to traditional, reactive policing: the watering down of search warrants, undermining probable cause under the “reasonableness” interpretation of the Fourth Amendment, the overreach of stop and frisk policing and the special needs doctrine, and racial profiling. Friedman nicely summarizes the main points of cases like Katz v. United States,³¹ not so much as an exposition of criminal procedure for a lay audience, but to identify the shortcomings of this branch of constitutional law: the general discounting of search warrants (Chapter 5), the scaling up of police intrusions without probable cause (Chapter 6), suspicionless searches (Chapter 7), and racial profiling (Chapter 8). The analytic overview of Fourth Amendment issues in Part II resolves by suggesting that rules should be enacted at municipal levels to shape police discretion.

Part III, “Twenty-First-Century Policing,” confronts issues generated by advances in surveillance technology that have allowed for unprecedented intrusions into the privacy and security of every American. From predictive analytics to counterterrorism and national security, these advances raise a host of thorny issues that could literally spell the difference between a free society and one governed by a refined form of Big Brother’s control via twenty-first century “telescreens.” ,³² Chapters 9 through 12—discussing surveillance technology, third-party information and the cloud, government databases, and counterterrorism and national security—offer illuminating analyses and wise prescriptions regarding critical issues. The Supreme Court’s recent Carpenter decision, requiring warrants to track cell site location information, speaks to the importance of these issues.³³ Carpenter hardly resolves all the issues and Friedman’s prescriptions generated by the case that were broadcast to a national audience speaks to his prominence.³⁴

Unwarranted can be evaluated not only on the merits of its Fourth Amendment analyses and prescriptions to correct what Friedman views as Court interpretations gone awry, but also for its ability to lucidly bring legal scholarship to a general audience.³⁵ As one who has been engaged in this project on a course-by-course basis for a half-century, I was impressed by the fluid style of Unwarranted and how the book mobilized examples of egregious searches to highlight the real-life impact of Unwarranted policing.³⁶ As suggested above, Unwarranted can be read in the context of Friedman’s law review articles, which track most of the book’s concerns.³⁷ The articles are more satisfying and more efficiently absorbed by scholars who are considering, contending, and advancing constitutional doctrine.³⁸ Unwarranted, however, expresses what might be called Friedman’s public ministry and can be seen as a tool to advance his work as director of the Policing Project. Unwarranted is a good vehicle for police officials, politicians, and others involved in the Policing Project’s programs who wish to delve more deeply into the intellectual arguments for democratic policing. In this way, the book can be viewed as one part of Friedman’s larger enterprise which is encapsulated in the prescription: “What we need are rules and policies to govern policing, written in advance, with public input.”³⁹

B. The NYU Policing Project

Examined through its website, the Policing Project is described as “a nonprofit organization” with a mission “to promote public safety through transparency, equity, and democratic engagement.”⁴⁰ The staffing seems quite extensive for a law school project. In addition to Barry Friedman as director, the website lists two deputy directors, ⁴¹ three senior program managers,⁴² a police consultant,⁴³ a program manager, an administrator, an assistant,⁴⁴ and five consultants and fellows.⁴⁵ The project also employs four externs from among law and policy students and, at the time of writing, had open positions for a finance, grants, and operations manager and a senior program manager/associate director of social science. ⁴⁶ This group, as expected, draws on talented legal scholars from top law schools with a great deal of experience in policing issues. ⁴⁷ Among the consultants, Robert Wasserman, a police consultant with graduate work in policing, started his career as the police academy director under William Bratton in Boston, was at Bratton’s right hand in New York, and wrote the grant proposal that created PERF—The Police Executive Research Forum. ⁴⁸ The other nonlawyer consultant is Duke University political science professor Sunshine Hillygus, an expert on public opinion and American elections.

This level of staffing obviously requires a good deal of external funding and other forms of support and cooperation. The Project’s website lists twenty-nine “partners” cited for “generous support” and “close cooperation.”⁴⁹ These include seven ideologically balanced foundations,⁵⁰ five law firms providing pro bono support, ⁵¹ eleven civil society organizations or think tanks with which the Project has collaborated in various ways,⁵² eleven law enforcement related organizations,⁵³ and two high schools that hosted youth engagement pilot projects.⁵⁴

The Project’s web page displays its five major areas of work under descriptive graphics. The first is “Principles of Democratic Policing,” which alludes to what appears to be a founding two-day closed-door conference of “law enforcement leaders from across the country” in 2015. The conference produced a Statement of Democratic Policing Principles, which mirrors the major themes of Unwarranted.⁵⁵ The second area of work is “Data and Cost Benefit Analysis” (CBA). The Project claims that CBA is “one of the best tools for ensuring effective policing,” and seeks to advance CBA of policing programs with the support of the Laura and John Arnold Foundation.⁵⁶ The third area, “Community Engagement,” is where the Police Project extends its reach nationally, with web descriptions of its outreach and partnering activities in several cities⁵⁷ and in three focus areas.⁵⁸ Area four, “Model Rules and Policies,” involves Project personnel in a task that is most congenial to lawyers and is thematically linked to the primary reform modality advanced by Unwarranted. It is also linked to the American Law Institute’s Policing Principles project. The web page introduces Friedman as Reporter for the ALI project and includes a short video of him explaining that project’s goals. The description of this section suggests that:

Few policing agencies have the resources to formulate policies from scratch, or to update their practices to reflect best practices. Technology evolves so quickly that it is difficult for policing agencies to keep up. That’s where we come in. We work with criminal justice experts, community members, police officials, and many others to write model rules and policies for policing.⁵⁹

“The Manuals Initiative” is the last work area of the Policing Project. It seeks to provide guidance and support for police departments and communities who want to put their department’s operational manuals online in an accessible and understandable manner.⁶⁰

The scope of the Policing Project’s work in 2018 is displayed on a United States map showing thirteen locations where the Project has partnered with local agencies, states, and schools, and for each location a short paragraph describes the nature of the project. A guidebook for best practices for collecting and analyzing stop data is being developed with the California Department of Justice. An online survey to solicit public information regarding the LAPD body-worn camera release policy was created. In Tucson, the Project is partnering with the police department and Community Advisory Council to develop outreach policies. Together with a team of social scientists, the Project is working on a cost-benefit analysis of the Houston Police Department’s Crime Analytics Labs. Two youth engagement projects are in the works in Tampa, Florida, and Camden, New Jersey. The Project completed a report for the NYPD on public feedback regarding its body-worn camera program. The Project is working on a costbenefit analysis of vehicle pursuit policies for the Roanoke City and Roanoke County police departments. With a team of social scientists, the Project is analyzing de-escalation training for the police department in Asheville, North Carolina. Stop data are being re-evaluated for the Nashville Police Department, and an online manual is in the works. For the St. Louis County Police Department, the Project and social scientists are evaluating the costs and benefits of its SpotShotter technology. The Policing Project and other groups work with the Chicago Police Department to develop a community engagement initiative. The Policing Project was retained by the Cleveland Federal Monitoring Team to assist with implementing its Consent Decree.⁶¹

For a non-profit organization in existence for about three years, the span of the Policing Project’s work is impressive. How it fits into the world of police think tanks is a matter of conjecture, but its formal link to the Police Foundation and other groups, and its ability to garner contracts, speaks to an impressive level of effectiveness. An indication of its orientation and desire to effect change is seen in its recently published report, along with the Police Foundation and the National Urban League, Beyond the Conversation.⁶² Survey responses were received from 128 law enforcement agencies and 239 community members affiliated with the National Urban League. Although all responding departments were engaged in community outreach, the report concluded that true engagement was lacking. While 70% of the community members reported they were very likely to respond to requests for feedback about departmental policies and new technology, 42% were skeptical that the police were responsive to public input. And while most of the police departments responding engaged in some form of communication with the public,⁶³ only 53% asked for the public’s input on agency policies and 40% asked for input before adopting new technology. “Fewer than twothirds of the agencies that reported asking for public input on substantive topics listed a specific policy or practice on which input was sought.”⁶⁴

If progress is to be made on expanding what the Policing Project deems meaningful police-community engagement, the obstacles to change need to be understood. As a first stab at the issue, the departments were asked to offer reasons for non-engagement. These included a lack of time or resources (39%), a belief that the public lacks expertise (37%) or interest (31%), concerns over confidentiality (22%), a candid acknowledgement of lack of departmental interest (8%), and a perceived hostility between community and agency (7%).⁶⁵

In general, Beyond the Conversation and the work of the Policing Project clearly advance the democratic policing theme of Unwarranted. The Project’s work, however, is not specifically focused on remedying the search and seizure and surveillance issues that animated much of Unwarranted. Although the Policing Project staff is well-stocked with lawyers, their focus seems to be on a wider array of police reform issues. The breadth of the Project’s current agenda in comparison to the scope of police reform issues is addressed below.⁶⁶

C. The American Law Institute: Principles of Law, Policing

The third leg of Friedman’s enterprise is as Reporter of the ALI project, Principles of Law: Policing. The American Law Institute (ALI), headquartered in Philadelphia, is an influential, elite, legal nonprofit organization with a membership of more than 2,800. It is top heavy with legal scholars, jurists, and members of prestigious law firms, which is in keeping with its self-advertised description as “the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.”⁶⁷ The ALI operates through three kinds of projects: Restatements, Principles, and Codes.⁶⁸ Each project has three levels of members: Reporters, Advisers, and Members Consultative Group (MCG). As Reporter for the Principles of Law: Policing project, Friedman’s responsibilities are to “structure the project, prepare drafts, and present drafts to Advisers and MCGs for discussion.”⁶⁹ The ALI website indicates that “[m]ost Reporters are law professors.”⁷⁰ Advisers are subject matter experts recommended to the ALI Council by the reporter, director, and deputy director, and are tasked with the responsibility to review project drafts and provide input to the reporters. The MCG consists of “ALI members who volunteer to join project discussions at any stage of a project’s life cycle;”⁷¹ they need not be area specialists. The reporter thus has major responsibility to shape the output of a project, and in this light it is not out of line to include the ALI project as a part of Friedman’s enterprise.

Joining Friedman as Reporter of Principles of Law: Policing are four outstanding criminal law scholars as Associate Reporters, ⁷² Friedman’s colleague and co-author Maria Ponomarenko as Project Fellow, and a representative of the Police Foundation, which partners with the NYU Policing Project, listed as a liaison.⁷³ In addition to this core group, there are fifty-two advisers and about 130 members in the MCG. The distribution of the advisers is interesting as it represents a wide array of experiences, competences, and representations of groups that have contributed to the work and analysis of policing. Twenty advisers represent key criminal justice roles including nine police officials,⁷⁴ four prosecutors, six judges, but only one defense attorney. An additional five attorneys affiliated with law firms or corporations are included as are three consultants who work with law enforcement agencies.⁷⁵ Eight academicians serve as advisors: six law professors and two criminal justice professors with policing specializations, Cynthia Lum and Samuel Walker. The remaining sixteen members represent groups that have a stake in or have advanced programs related to policing. Two are operational, a training unit and a police union.⁷⁶ The other fourteen are civil society organizations. Three of these are membership organizations that represent police chiefs and lawyers; ⁷⁷ three are civil society organizations that appear to focus only on police or prosecutors;⁷⁸ and eight are multi-issue civil society organizations with liberal,⁷⁹ conservative, or libertarian leanings.⁸⁰

A preliminary question I raised regarding Unwarranted is whether its orientation is primarily focused on police reform in general or on issues related to search and seizure and surveillance. How does the ALI Project respond to this question? The formal goals of the project, as stated in its website, seem to reflect Friedman’s interests as expounded in Unwarranted, up to a point.

This project aims to tackle some of the hardest questions, where courts, legislatures, and police are most in need of guidance. This project will include principles on Search and Seizure, Police Encounters, Use of Force, Evidence Gathering, and Police Questioning, among others.⁸¹

Including search and seizure as one of the project’s focal areas links to a major theme of Unwarranted—reducing egregious Fourth Amendment intrusions via democratically generated rules. A related substantive issue, the use of force, has always been a major concern in policing and it makes sense to include it in the ALI Policing project, especially given its political salience post-Ferguson.⁸² Similarly, it is quite logical to include a final part on police on remedies and accountability, as these are issues that relate uniquely to the interface between lawyers and police.⁸³

As I read the brief outline of Part IV of the ALI Project, Principles of Evidence Gathering, a close to complete disconnect between its themes and Friedman’s other enterprises was immediately apparent. Part IV is about the major problem of wrongful conviction. Five chapters are planned to examine forensic evidence and the collection and preservation of data by crime-scene and crime-lab personnel, eyewitness identification, confessions (including interviews of juveniles and mentally disabled persons), and informants. It seems unlikely that Friedman brought this agenda to the ALI and it may be that others thought to load the important topic of wrongful convictions on to Friedman’s police reform agenda, the important topic of wrongful convictions. For all of Friedman’s prolific and insightful work on policing and the Fourth Amendment, the real experts on topics related to Part IV, among those associated with the ALI Project, are: Associate Reporter Brandon Garrett, ⁸⁴ Advisors Michael Bromwich, ⁸⁵ James Doyle,⁸⁶ Vanita Gupta, ⁸⁷ Alexandra Natapoff, ⁸⁸ and Consultive Group members Ronald Allen,⁸⁹ Susan Bandes,⁹⁰ Eric M. Freedman,⁹¹ Tucker Carrington,⁹² Gabriel Chin, ⁹³ Lisa Kern Griffin, ⁹⁴ Andrew Leipold, ⁹⁵ Paul Marcus, ⁹⁶ Jennifer Mnookin,⁹⁷ Ellen Podgor,⁹⁸ and L. Song Richardson.⁹⁹ (My apologies to any overlooked). ¹⁰⁰ I will question the combining of what I see as separate subjects (the street policing issues of search and seizure and use of force with the police investigation issue of evidence gathering and wrongful convictions) in Part II. At this point, it appears that much of the ALI report is a done deal, so my comments regarding the ALI are probably superfluous.¹⁰¹

II. Assessing the Likely Success of Friedman’s Enterprises

My assessment concerns the likely impact and success of the interrelated components of Friedman’s enterprise, and not its content, as I agree with the goals espoused in Unwarranted, the aims of the NYU Policing Project, and the ALI Principles of Law: Policing effort. I briefly examine how criminal law and criminological scholars study police and policing. Except for empirical stop and frisk studies, social scientists have paid almost no attention to the search and seizure issues analyzed in Unwarranted.¹⁰² And while much criminal procedure scholarship is conducted in a “law silo,”¹⁰³ many legal scholars seek to draw on social disciplines.¹⁰⁴ Still, my research for this Comment indicates that legal scholars have not adequately exploited the work of policing scholars. In fairness, a disciplinary focus is necessary to complete scholarly work, but silo effects can blind scholars in one discipline to the insights of other disciplines.¹⁰⁵

Another theme I explore is time. Time—that is social changes that affect policing over long time periods—can be viewed as invisible intervening variables that explain much of the variance, speaking metaphorically, in policing changes over the decades. The way in which society has changed may not be an impediment, but instead may be a factor that advances progressive policing changes and may bode well for the long-range success of the NYU Policing Project. Several other issues will be folded into my assessment. I doubt if anything I have to say will come as a surprise to Friedman and his colleagues. Given the intellectual sweep and depth of Unwarranted and Friedman’s other writings, and the excellent scholarship of all who have been engaged in the NYU and ALI projects, what follows is probably known to them. If not mentioned, warning signs may have been strategically discounted. After all, it is impossible to say or cover everything in a work; attempting to do so prevents closure. Likewise, every enterprise poses a risk of partial or complete failure, and at some point those in charge must simply get on with it. Yet, checking the sky for an upcoming squall may keep the boat from tipping over.

A. What Is Meant by Success

The kind of success I am concerned with regarding Friedman’s enterprises is affecting real, long-range, progressive change in policing. Will Unwarranted motivate people to advocate for and enact rules that cabin the search and seizure and surveillance behaviors described in Chapters 5 through 12? The book itself does not suggest a clear procedure or vehicle for advocating for such changes. A circuitous path would be the dissemination of ideas in Unwarranted and its attendant law review articles¹⁰⁶ in the legal academy, ultimately inspiring lawyers and judges to “act as agents of democracy, in effect forcing policing officials to get democratic approval before they proceed.”¹⁰⁷ It is instructive to compare Professor Friedman’s somewhat amorphous agenda for change with the program laid out by the Innocence Project’s founders. Although the origins of the innocence movement involved many people, Barry Scheck and Peter Neufeld played a central role. ¹⁰⁸ Their book, Actual Innocence, written with journalist Jim Dwyer, included an Appendix with a “short list of reforms to protect the innocent.” ¹⁰⁹ Included was: “Create and fund Innocence Projects at law schools that will represent clients in DNA and non-DNA cases,”¹¹⁰ an effort that has led to the development of the Innocence Network and the dissemination of innocence reforms. ¹¹¹ Although Unwarranted lacks the kind of blueprint for action found in Actual Innocence, Friedman understood that a book plus a set of articles was not sufficient to mobilize the kind of change he desired. Thus, he initiated the NYU Policing Project, which, on its own, is an impressive undertaking. The issues raised in subsequent sections address the long-range prospects of the Policing Project making a distinct difference in police departments.

The ALI projects result in publications intended to influence courts and legislatures.¹¹² Most preliminary drafts of the Principles of Law: Policing book have been completed. ¹¹³ Although I have not read the drafts, it is inconceivable that the final product of the ALI project will not be an erudite, well sourced document that will convey a great deal of information to readers about policing reform and about wrongful conviction. As noted above, the ALI project, by including a deputy director of the NYU project as ALI Project Fellow and adding two Police Foundation officers as liaisons, was obviously structured to shape a report that would be compatible with the goals set out in Unwarranted and with the orientation of the NYU project. All the associate reporters have written on topics relevant to police, and Tracey Meares is an exceptional legal academic who is deeply involved in policing scholarship. The ALI project advisors represent many organizations that are in the thick of working for police reform, ensuring that the ALI finished report will reflect much if not most of concern to those engaged in police reform.

I registered my surprise that one part of the ALI book on policing will focus essentially on wrongful convictions. ¹¹⁴ Were the project entitled “Principles of Law: Actual Innocence,” the advisory group would surely have included representatives from innocence organizations,¹¹⁵ from the forensic sciences, and from social and cognitive psychology who study eyewitness identification, interrogations, cognitive bias, and other related issues. I am not at all worried that Part IV of the ALI report will be incompetent. Associate Reporter Brandon Garrett is among the leading wrongful conviction scholars, and his work has touched on most of the major issues related to miscarriages of justice. The ALI advisors and MCG persons that I was able to identify¹¹⁶ include scholars with deep and diverse knowledge of the subject and will undoubtedly offer helpful guidance and editing to Garrett and Friedman. Yet, given the almost explosive expansion of wrongful conviction scholarship, I think that an authoritative statement of the ALI will soon be obsolescent. The major genres of wrongful conviction scholarship, except for psychological studies of eyewitness identification, interrogation, and child witnesses,¹¹⁷ were almost non-existent in 1990 and just stirring by 2000. Much of the law review commentary at that time were reactions to the holding of Herrera v. Collins that a claim of actual innocence, standing alone, is not grounds for habeas relief.¹¹⁸ In the past decade and a half, what must surely be thousands of law review articles have weighed in on just about every subject related to the causes and consequences of wrongful convictions. ¹¹⁹ The legal writing about these subjects is accompanied by and draws on large bodies of empirical research in the forensic sciences, psychological sciences, and in recent years from the social sciences, criminology, and criminal justice fields. Some of the scope of this rapidly expanding field can be sensed simply by listing extremely valuable monographs written by legal scholars, which combine legal and empirical approaches in cognate disciplines related to wrongful conviction.¹²⁰ This is a lot of learning to pack into one part of a report. The ALI project has wisely narrowed its focus to three issues and to topics toward which legal scholars and jurists can make meaningful contributions. Part IV will include chapters on forensic evidence, confession evidence, and informant evidence. “Each Chapter will set out a framework for pretrial judicial review of the evidence, the use of experts, jury instructions at trial, and postconviction review.”¹²¹ Although I cannot be sure, it seems that the real value of Part IV is to weigh in on the pesky issue of the admissibility of experts on issues related to wrongful convictions.¹²²

Will it be successful? Although the ALI report will be seen as a successful, state-of-the-art reference work, I am concerned that combining two very large subjects—police reform and wrongful convictions—in one volume may dilute its impact. At best, Chapter IV may influence some recalcitrant judges who dislike admitting experts on eyewitness identification and interrogations to change their tune.¹²³ Ideally, the sections on police reform will encourage legislatures and courts to press for the kind of democratic policing called for in Unwarranted and enact use of force rules that will have a real-world effect.¹²⁴ Of course, the imprimatur of a highvisibility institution is not a bad thing, but my sense is that the ALI report will have limited positive impact.¹²⁵

B. Silos

One concern with the success of Friedman’s projects is the lack or insufficient appreciation of policing scholars’ research.¹²⁶ It was apparent on my first reading that Unwarranted, especially the substantive, issue-oriented chapters in Parts II and III, is not the kind of book a social science policing specialist would write. Policing specialists ¹²⁷ in recent decades have researched problem-solving policing, community policing and crime prevention, broken windows and zero-tolerance policing, focused deterrence and lever-pulling strategies, hot spots policing, police organization and supervision, CompStat, policing and crime reduction, police and technology, racial profiling, police corruption and integrity, patrol function and responses to demeanor, use of force, legitimacy and procedural justice, police auto pursuits, police officer attitudes and culture, police education and innovation, gender and policing, methodological issues related to studying the police, and a scattering of other topics.¹²⁸ Unwarranted touches on some of these issues and cites some policing research, but for the most part policing research is tangential to the book’s main concern with adopting democratic rules that address Fourth Amendment issues.¹²⁹

1. What Legal Scholars Miss: The Agency Problem

What is police work really like? Police scholars spend their professional lives probing the realities of policing in its many guises. While those who did not serve as law enforcement officers can only know policing externally, they do so through quantitative and qualitative data, and the latter includes a good deal of interaction with police through interviews and observation.¹³⁰ My guess is that most legal scholars who write about police, with some notable exceptions, are more remote from policing realities, given that the focus of most criminal procedure scholarship is appellate litigation. Be that as it may, police scientists absorb the deep message that there are structural and organizational factors that make police reform inherently difficult. The agency problem has been noted by a few criminal law scholars but has not been explored in much depth by them, especially in comparison to business law scholars.¹³¹

In corporations and in the political world, principals (stockholders, citizens) devolve on agents (corporate officers, elected and appointed officials) the authority to act on behalf and in the best interests of the principals. The relationship is one of trust, and the underlying problem is that agents are in a position to violate their trust. Heather Schoenfeld, applying principal-agency theory to help explain the recurrent problem of prosecutorial misconduct, described three “organizational characteristics of trust relationships [that] can . . . lead to opportunities for deception.”¹³²

First, agents’ decisions are not transparent because they are “socially, organizationally, temporally, and geographically distant from their principals.”¹³³ This may be less true of line police officers than prosecutors, as cops are not temporally or geographically distant from people they stop or arrest; patrol officers are, however, temporally and geographically remote from their supervisors. If the principal is viewed as the general public, acts performed by officers on suspects may still be non-transparent in that they are not acknowledged even if problematic or illegal. The proliferation of personal recording devices has changed the landscape of policing by narrowing opportunities for agent secrecy, thus helping to enforce the agents’ duties.¹³⁴

“Second, the organizational structure common to trust relationships includes hierarchy, specialization, and internal diversification—all of which mask illicit acts and block the flow of information, not only from outsiders but also from insiders as well.”¹³⁵ The hierarchical structure of policing means that whether an officer’s problematic behavior, which is known to a first-line supervisor, is acted on by commanders depends on whether the event information is transmitted up the line.¹³⁶ Likewise, command-initiated reforms are effective only to the degree they are transmitted down the hierarchy through first-line supervisors to street officers. The third element is that legitimate and illegitimate outputs of agents may look alike, concealed by the discretion vested in the agent.¹³⁷ This theory, even if unnamed, applies to policing studies.

Police scholars tend not to refer to the agency problem as such but to the organizational nature of policing as an impediment to reform. Skogan, reflecting general scholarship and his own experiences in studying community policing in Chicago, offered several reasons for resistance, attributed mostly “to the career and bureaucratic interests and managerial outlook of the parties involved.” ¹³⁸ Mid-level and top managers resist reforms because of threats to status and mobility (for the mid-levels), and distrust of the rank-and-file, which is linked to a concern that greater discretion can be abused and lead to scandals; and corruption scandals are a quicker road to firing than rising crime rates.¹³⁹ Reforms might also lead to new bureaucracies that upset or threaten top managers’ control. Front-line supervisors, the sergeants, whom Skogan calls the ‘real employers’ of the line officers, ¹⁴⁰ and who are “the ‘transmission belt’ that translates the policies of higher-ups into action,” resist reforms out of a shared skepticism with line officers that the reform programs will work.¹⁴¹ Reforms break on the shore of line-officer resistance, comprised of a police culture that distrusts civilian intrusion into police work, the added work that reforms entail, the tendency of reforms to upset traditional notions of “real” police work, and the reality that it is hard to translate some reform principles into concrete behaviors. ¹⁴² Police in special units, especially elite units like detectives, fear reforms will upset traditional measures of success.¹⁴³ Major resistance is expected from police unions which, in addition to sharing police culture, are concerned that reforms will disrupt negotiated contractual work rules.

Also, in Chicago and likely in many other cities, police unions have formidable political power that can influence prosecutors and judges.¹⁴⁴ In addition, officers need to be found to staff new programs, training is expensive, and established 911 routines may be disturbed by some reforms.¹⁴⁵ Bureaucracies are information-processing entities: documenting community policing activity is difficult and unmeasured activity gets no support. Community policing reforms may conflict with CompStat, yesterday’s reform. ¹⁴⁶ Lack of interagency cooperation may undermine reforms that depend on such cooperation. ¹⁴⁷ Reforms may be transient, evaporating with shifts in public interest or with the policies of a new chief.¹⁴⁸ Skogan concluded that for community policing reforms to take hold in Chicago, the program had to be a priority for the mayor.¹⁴⁹

Skogan’s views may seem anecdotal, subjective, and contingent on the peculiarities of a city with a uniquely insular police department.¹⁵⁰ The same could not be said for the meticulously researched study of two mid-sized police departments by Rob Worden and Sarah McLean. ¹⁵¹ Taking an institutional perspective in which discretion is exercised by the lowest ranked officers who work in an environment that is “heterogeneous, ambiguous, uncertain and dangerous,”¹⁵² but where the once hyper-insular police culture of loyalty and individualism is slowly giving way to more universal norms, reforms are still “subject to a process of interpretation by the officers whose behavior is the target of change, a process known in the study of organizations as ‘sensemaking.’”¹⁵³ Worden and McLean examined the reform on procedural justice. The 2004 National Academy of Sciences report, Fairness and Effectiveness in Policing,¹⁵⁴ advanced the desideratum of making legitimacy, based on procedural fairness, a criterion of policing as important as effectiveness in reducing crime, reducing fear of crime, and the lawfulness of policing.¹⁵⁵ After the post-Ferguson turmoil, including the rise of the Black Lives Matter movement and some pushback,¹⁵⁶ the idea of legitimacy as a “pillar” of policing found high level expression in the 2015 Presidential Task Force created in response.¹⁵⁷ A key element of procedural justice in policing is that feelings of subjective justice are derived more from fair treatment than from the substantive outcome of a police-citizen encounter and that the subjective belief in the legitimacy of police is derived from the procedurally just ways in which police exercise their authority.¹⁵⁸

The growing profile of procedural justice, its attractiveness, its apparent logic, its research foundation, and its valorization by the President’s Task Force on Twenty-First Century Policing are reasons why some of the community engagement projects of the NYU Policing Project are infused with a procedural justice aura, although procedural justice as such is not prominent in Unwarranted.¹⁵⁹ Even if Friedman’s enterprise is not geared toward establishing procedural justice as a pillar of policing, the challenges to this reform observed in Worden and McLean’s research are an object lesson of the general difficulty of moving police work in a progressive direction. Most procedural justice research is based on citizen surveys,¹⁶⁰ and this method is so prevalent that its major result, legitimacy, is defined as a subjective matter. ¹⁶¹ Worden and McLean’s research, however, shows procedural justice both as citizens’ subjective beliefs and as the behaviors of police officers, a construction that is possible only with knowledge gleaned through advanced social research.¹⁶²

Mirage of Justice is a model of research triangulation, in which the effects of measuring and administratively advancing procedural justice were detected with multiple research instruments and strategies, framed by relevant theories.¹⁶³ The project was tied to agreements by the two police departments involved to supplement Compstat meetings—normally focused on crime rates—with data related to citizens’ subjective opinions of the police. This allowed the departments to emphasize the importance of “customer service” for the duration of the project.¹⁶⁴ In order to measure procedural justice, the departments used a police survey to capture the subjective experience of citizens who had made calls for service, were stopped for traffic violations, or were arrested.¹⁶⁵ The departments also gathered a survey of community leaders ¹⁶⁶ and a systematic survey of written expressions of citizens’ dissatisfaction with police.¹⁶⁷ Worden and McLean’s project collected similar data monthly and fed the data to each department’s Compstat meetings for a year and a half.¹⁶⁸ Police used in-car-tapes of Schenectady police-citizen encounters to measure police procedural justice and procedural injustice in their recorded encounters with citizens.¹⁶⁹ Mirage of Justice provides a wealth of findings. The book shows that most citizens were satisfied with the service they received from police. Although those arrested were less satisfied than those who called for service or were stopped, more than half of those arrested in the Schenectady, New York, survey were somewhat or very satisfied, as were almost 40% in Syracuse, New York. ¹⁷⁰ Overall procedural justice scores were high. ¹⁷¹ Yet, a multivariate model of citizens’ subjective experiences showed that perceptions of officers’ procedural justice combined with the situational context, citizens’ background, and subjective procedural justice generate measures of contact satisfaction. ¹⁷² Although citizens were subjectively satisfied with citizen-police encounters overall, the most frequent source of dissatisfaction citizens expressed in the surveys was that the outcome of the citizen-police encounter was not satisfactory (e.g., “Nothing was done about the situation”). ¹⁷³ The regression analysis of quantitative scales of police procedural justice and procedural injustice was derived from an analyses of 539 recorded police-citizen encounters in Schenectady; it indicated that procedural justice is greater when a situation involves a violent crime or interpersonal conflict, and, counter to expectations, when the citizen is black.¹⁷⁴

Mirage of Police Reform’s research has led to a more complete construction of procedural justice but has also produced a more daunting challenge to the prospect of success, or at least quick success, of the NYU Policing Project’s goals than the kind of obstructionism that Skogan experienced in Chicago. Both the Syracuse and the Schenectady police departments cooperated with Worden and McLean’s project to measure and subtly advance procedural justice, and for its duration, funded the surveys.¹⁷⁵ Despite this, the authors did not expect the project to produce major changes, primarily because baseline measurements of procedural justice were high “leaving only so much room for improvement.”¹⁷⁶

Another major barrier, similar to the one discussed by Skogan, was the attitude of first line supervisors and line officers. Interviews disclosed that “sensemaking” by officers resulted in mixed feelings about the program to inculcate a customer orientation. Among patrol officers and supervisors, some fully supported the program while others supported it with caveats and some opposed the program. Some who resisted the external focus on fairness and satisfaction felt that the police administration did not extend the same philosophy to line officers.¹⁷⁷

A major takeaway finding of the study is that “citizens’ subjective experience is very weakly related to officers’ procedural justice and only moderately related to officers’ procedural injustice . . . . These findings raise doubts about the efficacy of the procedural justice model as an approach to police reform.”¹⁷⁸ A closer examination shows that the disappointing finding resulted from relatively positive factors. First, in Schenectady, where inpatrol- car cameras allowed for the analysis of police procedural (in)justice, observations showed “moderate levels of procedural justice and low levels of procedural injustice in officers’ behavior.”¹⁷⁹ Next, “[t]he relationship between officers’ procedural justice and citizens’ subjective experience is weak partly because citizens tend to be fairly positive in their ratings of police performance, even when the procedural justice that we observed was fairly low.”¹⁸⁰ The ability of this study to cross-tabulate citizens’ subjective procedural justice with measures of police procedural (in)justice in Schenectady graphically shows that the impact of police behavior on citizens’ beliefs is limited.¹⁸¹

Although Worden and McLean show in great detail that police reform efforts are inherently hard to sell in American police departments, the overall picture is surprisingly complex. The negatives to reform, grounded in the police culture described by Skogan, are part of the background of policing resistance to reform. But, the positive side of the equation is that a large reason why it may be difficult to change police behaviors is that in the ambiguous world of routine street policing, police are in fact (in many departments) functioning at relatively high levels of satisfaction. This finding seems to run counter to the intuitions of procedural justice advocates. Yet, the intensive, triangulated research project that informs Mirage of Police Reform suggests that its lessons may not be properly measured by procedural justice research that focused on more scripted encounters like automobile stops.¹⁸²

The difficulty of instituting or expanding procedural justice approaches should not be confused with disapproval of this humane and effective orientation. Procedural justice policing and democratic policing are compatible with the community policing philosophy, and with the larger project of expanding the service function of police work and reducing the role of political policing to the minimum necessary to preserve a democratic society.¹⁸³

I conclude this section by discussing a randomized experiment in Seattle that sought to instill procedural justice approaches to policing. Emily Owens and colleagues conducted a seven month experiment in which a random sample of “treated” street officers, drawn from beats with elevated predicted risk levels, were compared to “untreated” officers working in similar areas. ¹⁸⁴ The experimental engagement was built on economics and psychological theories, which hold that experienced workers are more efficient; thus experienced police officers may process routine encounters without the slower and more reflective (or self-conscious) style of a rookie, which could be perceived as low on a procedural justice continuum. To instill a “slow thinking” style,¹⁸⁵ the experimental intervention, based on “the language of cognitive behavioral therapy (CBT),” ¹⁸⁶ consisted of a meeting between a supervisory sergeant and an officer regarding a computer assisted dispatch (CAD) incident classified as “priority one” or where an arrest was made but there was no complaint filed or disciplinary issue.

Many SPD employees were initially confused as to why they were being asked to discuss events where “nothing bad happened” rather than more unusual and traumatic things like witnessing a suicide attempt. This response highlights a specific issue . . .; experienced officers respond to “small stuff” all the time, so that they no longer need to engage during these events in the same way they did during their first days in the department. The need for additional discussion of these events was similarly unclear to them.¹⁸⁷

During the meeting the supervisor:

explained that enforcing the law with procedural justice was a central part of the department’s mission and that the goal of that meeting was to discuss how the officer used procedural justice during the incident in question. The officer was then invited to discuss the chosen event; the sergeant asked the officer to recount how he or she learned about the incident, what the officer thought he or she would see on arrival, and what the officer did observe once he or she got to the scene. In this way, officers were being prompted to reflect on their thought process during parts of their job where they no longer have to think carefully—pushing back against their training and reinforcing the importance of how they made decisions on scene.¹⁸⁸

The officers in the experiment were measured on outcomes, so the study could not directly observe whether the officers employed procedural justice methods of policing.¹⁸⁹ Outcome measures, however, were consistent with procedural justice policing. No systematic differences were detected in the measures of officer behavior across treated and control groups prior to randomization.¹⁹⁰ Officers who engaged in the CBT-style meetings slightly increased their number of interactions with citizens (i.e., CAD engagements) registered significantly fewer arrests and fewer use-of-force incidents. The data did not detect significant differences in complaints against treated versus control group officers. ¹⁹¹ The authors concluded “that nondisciplinary, cognitive, and procedurally justice based supervisory meetings are a promising strategy for improving police-community relations specifically and policing in general.”¹⁹² A following policy essay commenting on the Owens et al. study found the results encouraging, but raised the possibility that the effects could wear off with time.¹⁹³

I understand that the goals of the NYU Policing Project, or at least the missions it engaged in, are broader than only instilling a procedural justice ethic in a police department. Yet, as the Policing Project is engaged in police reform, the lessons of social science policing specialists (based on empirical research) should be useful guides to potential roadblocks and to promising methods of advancing—and studying—reforms.

2. What Policing Scholars Miss: Issues of Legality

At the beginning of Part II, I asserted that policing scholars tend not to study issues of legality as such. I found only two articles that empirically explored the legality of police action in automobile stops.¹⁹⁴ At times, courtgenerated criminal procedure issues have provided a basis for social exploration. One example, indirectly related to policing, is seen in studies of prosecutor and trial court case dismissals designed to get an empirical handle on the “costs” of the Fourth Amendment exclusionary rule¹⁹⁵—an issue that was a stalking horse for the Supreme Court to weaken the regulatory grip of constitutional law on police action.¹⁹⁶ A better example of policing studies that explore an issue closely related to the legality of stops (but perhaps more a study of the exercise of discretion) is the large number of automobile racial profiling studies made possible by legislatures mandating police to video record automobile stops.¹⁹⁷ More recent examples are studies of stop-question-frisk practices used as crime control policy,¹⁹⁸ a use or misuse of Terry v. Ohio.¹⁹⁹

My point is that many valuable studies of police stops²⁰⁰ simply do not seek to answer a question about the legality of police work.²⁰¹ The 2004 National Research Council study of policing included a chapter on “lawful policing,”²⁰² which reviewed empirical studies of the effect of the Miranda decision on interrogation, excessive lethal force, searches and seizures, police corruption, and compliance with the law. The search and seizure research included studies of the exclusionary rule I have alluded to above and a few impact studies published shortly after the Mapp decision. ²⁰³ A good deal of attention was given to a conference paper by Gould and Mastrofski that was the precursor to their article, ²⁰⁴ but otherwise no attention was given to the issue of legality or constitutionality of search and seizures.

One can speculate on why police scholars have not concentrated on issues of legality and constitutionality. There are many other critical questions police specialists have explored with important and painstaking research, and in the social sciences there are relatively few policing scholars, who are stretched thin to cover the many issues deserving study. Once a social scientist becomes invested in a research area, it is difficult to shift to other research areas and modes. Research that “involves the direct observation of police behavior, including both by patrol officers and detectives . . . is laborious and expensive to conduct.”²⁰⁵ There really is not much interest in legal doctrine in criminal justice and criminology departments, so issues of legality are not on the mind of most police researchers. ²⁰⁶ Whatever the reason, by not pursuing research on the constitutionality of the search and seizure rules reviewed in Unwarranted, police scholars are missing a vital area. A great example in our field is how Jim Fyfe, the premier scholar of police violence, mobilized the Police Foundation to support doctrinal reform through an amicus brief in Tennessee v. Garner.²⁰⁷ I completely understand the odds against doctrinal change in Fourth Amendment law any time soon and the arguments for a strategy of democratic rules espoused by Friedman. Yet, I believe that a sustained line of research on such issues, to supplement Gould and Mastrofski’s one-off, could have real policy effects. As the NYU Policing Project goes forward, I would suggest that its directors bolster policy activity by stimulating the kind of research that policing specialists can provide.

C. Fragmentation

America has the most fragmented government in the world, a truism that has long characterized American public policy as a bizarre jigsaw puzzle—one that seems to be growing “more chaotic, complex, and contentious than ever before.”²⁰⁸ Every scholar and organization involved in justice system reform needs to be cognizant of this. Many scholars have identified the issue, but a recent comment by Malcolm Feeley, describing forty years of failure to reform pretrial release or diversion, puts this fragmentation in stark relief.²⁰⁹

Frank Zimring reminds us that the United States has fifty-plus separate criminal justice systems, each of which is essentially a separate sovereign. But this is just the beginning.

There are 3141 separate counties in the United States, and most of them select and finance their own prosecutors. We therefore have about that many separate judicial systems, though states now finance most courts. We have a bizarre mixture of public defense systems, which scrape by on various forms of funding. Almost everywhere, police are organized and financed at the municipal level, which means that the United States has over ten thousand separate law enforcement agencies. And, for the most part, jails are organized at the county level and run by elected sheriffs, while prisons are administered and financed by state or federal governments. It is as if the separate parts of the machinery of justice were manufactured by one group, assembled by another, and operated by still a third, all working without a common blueprint or meaningful coordination, let alone oversight. Add to this a multiplicity of municipal, county, and state budgets that finance the machinery of justice as well as elections that select a fair number of those who run the machinery, and the picture is complete.²¹⁰

Fragmentation goes beyond the carving up of governing districts. It goes to the heart of an American dilemma: the perpetual tension between a founding ideology of distrust of power that established a weak government and periodic eruptions of populist or democratic movements on the one hand, and the irreducible need for effective public administration on the other. This tension continues to play out in American government and constitutional law in a myriad of ways. The two kinds of fragmentation produce “[c]haotic political institutions, marked by overlapping, uncoordinated authority, [which] frustrate reform.”²¹¹ Even worse,

[t]he often tumultuous, always unstable democratic urge does not introduce a workable notion of the people, or of the public interest, or of participatory community politics. Instead, it interrupts and reforms the regime. It leaves behind the underlying conditions it found: a political economy of self-seeking interests pushing ahead within a complex welter of political rules that advantage some citizens, disadvantage others, and seem almost invisible to all.²¹²

At least one scholar, David Alan Sklansky, has observed a fit, of sorts, between cycles of participatory democracy and democratic pluralism and major styles of policing.²¹³

The minimal concern resulting from fragmentation is that any accepted reform cannot be swiftly imposed by American institutions, especially in policing, but must be adopted department by department, if at all. ²¹⁴ Friedman is aware of this issue, although he deals with it in a couple of pages by reminding readers that of the approximately eighteen thousand police forces in the United States, some are large bureaucracies while about two thousand consist of one person.²¹⁵ The reality of fragmentation warns that democratic reforms contemplated by Friedman will have to fit into this bizarre system, in which proposed local police reforms may have to be accommodated by other uncentered agencies.²¹⁶

Freidman, in an interesting turn, perhaps a mental jujitsu move, takes this kind of diversity into account by supporting the idea and reality of individual states and municipalities passing laws and regulations, which vary in their results, to govern police activity as best fits local needs. The prime example is action taken post-Ferguson in many cities and states to get civilian control over the military arsenals that more than a few police departments had acquired.²¹⁷ A recent survey of vibrant local policymaking has been described in the travelogues of James and Deb Fallows who visited many small cities (flying in their own airplane) to scope out signs of civic renewal, which they found.²¹⁸ There certainly is hope for democratic (or perhaps patrician) action at the local level, but whether it can solve all the problems addressed by Friedman and the NYU Policing Project must be seen as an open question. One element in “our federalism” that should be understood in relation to criminal justice reform is that the federal role has become a large part. My view is that enlightened support of reform programs by the National Institute of Justice and other Justice Department components has become an essential element in advancing better criminal justice policies, given the American polity’s fragmented nature. ²¹⁹ Civil society organizations like the Police Foundation and PERF—and the NYU Policing Project—can help to advance fact-based programs motivated by decent (in all its meanings) ideas, but, I think, only up to a point. My perception is that federal support for programs like practice and pattern lawsuits²²⁰ and community policing have waxed and waned (repeat) under the last four federal administrations. What happens when the federal government picks up its proverbial catcher’s mitt and stalks off the field leaving the sandlot players without a game raises darker concerns.

D. Deeper Concerns, Darker Picture

In the days before Holmes and Cardozo lifted the blindfold from the eyes of lady justice and helped initiate legal realist thinking that now flies under the law and society banner,²²¹ it was possible to believe (or pretend to believe) that legal doctrines like the fellow-servant or the inherently dangerous rules were simply common sense rather than cost-shifting policies calculated to protect business entities from possibly ruinous liability.²²² By the mid-twentieth century, a more clever understanding of judging absorbed legal realism’s socio-economic critique. ²²³ This jurisprudential snippet simply reflects, in a form familiar to lawyers, how sociological analysis uncovers latent functions and unintended consequences.²²⁴ Just as the laws’ manifest surface can blinker out certain latent truths,²²⁵ we ask whether the apparent institutional goals of police reform blind hidden shoals from sight.

Friedman cites failed cycles of police reform. They were set off by major police-citizen confrontations (e.g., the 1960s inner-city riots; the Los Angeles Rodney King riots), to be followed by prestigious reports, only to lapse into business as usual after a few years.²²⁶ The same pattern of failed or limited change may follow today’s post-Ferguson reform fervor,²²⁷ as the latent factors that drove mass incarceration go unrecognized. Although mass incarceration research focuses primarily on penal policies and judicial practices, police practices enabled by constitutional rulings fed jails and prisons,²²⁸ and that style of policing was a poor fit with community policing, procedural justice, or democratic policing.

A darker picture of inherent limits to police reform begins with the truism that police agencies are not autonomous; in varying ways their work is directed by external forces. Friedman recognizes this and advocates democratic rule making to control police work, but his agenda emphasizes democracy as a method and seems agnostic to content. In regard to post-Ferguson local control over police arsenals, the fact that City A after deliberation allows its police to maintain armored personnel carriers and drones while City B does not is a matter of indifference or even a sign of local democracy in action. His chapters on criminal procedure, however, suggest a substantive agenda in the direction of “liberal” Fourth Amendment doctrines. I think that democratic policing is intended to go beyond procedural forms of police rulemaking, and generally favor progressive content supportive of community and procedural justice policing—goals that may run into oppositional concerns.

Martin Shapiro taught that law is never an empty shell neutral to the wishes of whoever gave it content. “[L]aw must come from somewhere. . . . [E]ven those rules consciously designed to meet only the interests of prospective disputants cannot be totally neutral in the sense of embodying no general social vision of right and wrong or appropriate and inappropriate conduct.”²²⁹ In the mediating continuum, go-betweens and mediators are as close to neutrals as we get, but the “logic of the [neutral] triad” breaks down as soon as a decision is made, with the loser viewing the process as twoagainst- one.²³⁰ Once the state’s courts, enforcing the state’s law, enter the picture, any semblance of neutrality is gone, especially in criminal law.²³¹ Shapiro’s analysis remarks on criminal law in that:

even in those few societies that seek to insulate the judge from the rest of the government, [] is expected to administer the criminal law, that is, to impose the will of the regime on a party being prosecuted by the regime [even though the process takes] extremely great care to the various rituals of independence and impartiality.²³²

Let us apply Shapiro’s understanding of courts and law to police. On the individual level, we cannot expect officers’ views and concomitant enforcement behaviors to rise much above ordinary prejudices, unless they are carefully taught otherwise. ²³³ At the agency level, whether police departments will adopt democratic policing modes is contested space, and the result most likely depends on the nature of the socio-political regimes they serve.²³⁴ Even among agencies that adopt democratic policing, it is not certain that procedural justice goals (which should be inimical to policing that sustains mass incarceration) will result. Zero-tolerance policing surely garnered majoritarian support in its heyday. In short, I doubt that the democratic policing contemplated by Friedman is indifferent to the content of policing policies.

What latent forces could stymie reform? Even before Michelle Alexander’s groundbreaking The New Jim Crow,²³⁵ it was apparent to most criminologists that a racially-biased, politically and policy-driven juggernaut was warping the normal and beneficial uses of criminal law and its administration into a carceral state.²³⁶ Beneath rational concerns about crime and the hysterical view of illicit drugs²³⁷ was a society that overreacted for reasons that may be hard to unravel but have been studied in some depth. Thus, even as a political consensus of sorts is growing to moderate the penal harshness that produced mass incarceration, there are deep and lurking forces that may limit penal reforms, which in turn may dampen proposed police reforms.²³⁸

Race is surely first among the currents that pull against justice system reform. Michelle Alexander reminds us of white reaction to broad advances in the rights and conditions of African Americans: slavery was followed by the Jim Crow era and the civil rights movement with the New Jim Crow.²³⁹ This pattern was echoed by Donald Trump’s election, however fortuitous, after the first black U.S. President served two terms in office. Trump’s rhetorical ability to bring avowed racists out of the shadows probably gives heart to people with more “respectable” racialized views who fear the decline of white privilege ²⁴⁰ —a political ploy linked to the current administration’s back-peddling on police reform. ²⁴¹ Among the major criminal justice policy changes instituted after one year of Trump’s administration are decreased federal oversight of and curtailed federal grants for police, possibly weakening police-community relations.²⁴² “State politicians have taken the president’s cue, stoking false fears of a new, immigration-related crime wave.”²⁴³ It would, nevertheless, be a mistake to view racial concerns as an automatic block to police reform just as it would to ignore the issue.²⁴⁴

A related factor slowing meaningful police reform across America’s vast and fragmented justice system is the continued use of SWAT teams to serve warrants—practices that were deeply embedded by the program of militarizing the police.²⁴⁵ Unwarranted lists control of SWAT teams as a target for democratic policing. Given the excitement, status, and sense of solidarity that SWAT teams generate, controlling them will be an uphill fight. ²⁴⁶ Indeed, SWAT-style enforcement may be ideologically compatible with many Americans and may be fine with local political elites. In any event, the Trump Administration has “removed federal restrictions on what is known as the ‘1033 program’ allowing state and local law enforcement agencies to request surplus Defense Department equipment for police officers.”²⁴⁷

All sorts of indirect factors may inhibit police reform. John Pfaff, for example, proposes that longer sentences for violent crimes, changes in prosecutorial decision making, and structural changes (e.g., more full time rural prosecutors) put a floor under the ability of states to reduce the number of prisoners.²⁴⁸ If true, this factor does not directly affect police reform, but may have indirect effects by generating or perpetuating a reflexively and hegemonic “tough-on-crime” mindset that perpetuates insular and oppressive criminal justice systems in thousands of rural counties.²⁴⁹ Young and Petersilia’s review of three books²⁵⁰ expands this perspective to propose that the main task of the criminal justice system everywhere is to patrol the underclass: “This Review argues that an important root cause of our criminal justice ails can be found in the social processes that comprise the system’s daily activities and forms of control over individual Americans—processes largely taken for granted.” ²⁵¹ This patrolling takes the form of pretext automobile stops that target blacks and the apparently less well-off: by shaking some drugs out of cars and letting these folks know they are being watched; ²⁵² by the continuing intrusion into the lives of those in poor communities who have attained even minor criminal records and are not marked as “dirty” by police, probation officers and creating “liminal citizenship;”²⁵³ and by the now eternal electronic criminal records that are available to private organizations, perpetuating “second-class citizenship and an enduring scarlet letter.”²⁵⁴ Police reform would have to attend to each of these deeply embedded practices.

Related to Worden and McLean’s view that internal dynamics of policing limit the scope of reform is Rachel Barkow’s thesis that the criminal justice system—a “mass bureaucracy”—“has vested and powerful regulators who may fail to appreciate the tradeoffs and downsides when they pursue their goals because of a type of tunnel vision that develops.”²⁵⁵ Barkow’s analysis parallels Friedman’s turn to administrative law rule making, but she observes that while across the extensive range of civil government state actors in regulatory agencies are checked by powerful forces (e.g., lawyers, economists, scientists, and other specialists employed by business interests), those most affected by criminal justice “are not well positioned to lobby for change because they tend to be poor and disorganized and in some places, are disenfranchised from voting.”²⁵⁶ As a result, even as a bipartisan criminal justice reform ethic is stirring, the appeals of tough-on-crime politics should not be underestimated.²⁵⁷ The forces that gave rise to mass incarceration have “created an enormous and powerful criminal justice bureaucratic state”²⁵⁸ seen in hugely expanded prosecutorial power, problem-solving courts as behavior regulators, sentencing commissions and guidelines, and the fact that “[j]udicial review of criminal justice agencies is almost nonexistent.”²⁵⁹ Barkow concludes that even if politics begin to shift toward ameliorating harsh justice, “fundamental changes would require a shift in the regulatory edifice as well.”²⁶⁰ Her analysis does not extend to policing agencies, but it seems clear that even police agencies (or individual executives) well-disposed to community policing may face pressures to limit reforms.

Two studies link Barkow’s institutional thesis to the politics that support justice agency wishes over community needs. James Forman’s detailed political history of race, crime, and politics in Washington, D.C., from the 1970s onward reminds present day observers who understand the doleful effects of mass incarceration on minorities that when crime rates rose in the 1960s, blacks who had recently gained political power in cities where they were majorities were as confused and concerned about how to respond as white Americans.²⁶¹ Three policies were enacted in the raucous democracy of big-city D.C. politics that proved harmful to the real needs of the African American community. Harsh marijuana sentencing won over decriminalization, in part out of racial distrust of the liberal white politicians who favored decriminalization, and in part because “those who had been arrested or convicted [overwhelmingly black] rarely participated in debates over criminal justice policy in D.C. or nationally.”²⁶² The city opted for the nation’s strictest gun control laws, driven in part by outrage by black victims against violent black criminals. But, the policy did nothing to stem the influx of guns from the outside, was not “the vanguard of a national gun control movement,”²⁶³ and jacked up the sentences of African American defendants with mandatory minimums. ²⁶⁴ Finally, the local community warmly supported the expanding numbers of black police officers only to learn that cops are cops and black police supported tough sentencing for drug offenders. ²⁶⁵ What I find especially significant—alongside the understanding that the political leaders tended to represent the respectable, middle class black community more than those who were more likely to be arrested—is that black police leaders “joined many of America’s other black leaders in calling for root-cause solutions to crime, including socioeconomic reform and a health-care overhaul”—fundamental changes that never occurred.²⁶⁶

Lisa Miller’s exemplary research explains the political reasons why criminal justice reform that would be meaningful to those who are most victimized, along with programs that would have addressed the real needs of poor communities, have generally gotten no traction.²⁶⁷ American politics has been defined in terms of accommodative formalism and preferential pluralism.²⁶⁸ It is a democratic process that is open to many (very many) interests that are channeled into legislative and administrative processes that encourage formal procedures—part of the constitutional system designed to prevent the accumulation of excessive power, but that allows for some accommodations “if the system is to act at all.”²⁶⁹ In this system, those with greater resources tend to get the most access, decisions normally get made through compromise and bargaining, and decisions are more likely to be incremental than overarching solutions or radical breaks with the past. When this system works it reflects “a sensitivity to structure combined with an acknowledgement of the need for change.”²⁷⁰

Into this framework, Miller’s interest-group research of the politics of crime is a rare (perhaps because it is so painstaking) examination of the ability of marginalized groups and people, those most likely to be victimized by crime, to generate policies likely to make real changes in their lives and communities. Her ultimately negative conclusion is foreshadowed by James Foreman’s observation that root-cause solutions to crime were not forthcoming. Miller shows why the nature of American interest-group politics makes the odds of success for local marginalized interests a longshot in the political arena.

Crime was once primarily a state and local issue, but in today’s “U.S. federalism,” policy issues are “addressed at the local, state, and national levels of government simultaneously.”²⁷¹ This growing centralization and importance of crime policy at the federal and state levels, according to Miller’s research in federal and state archives and in Pennsylvania’s policy process, operates to:

limit the voice of groups who are most affected by crime and who frame crime as a public interest problem. While some citizen groups seem to fare well on the national level, others—for example neighborhood associations, ex-offender groups, mothers’ and parents’ groups—are deeply embedded in local contexts and often resource-poor, making it difficult to migrate across multiple legislative venues.²⁷²

Thus, for several reasons, including the inability to fund lobbyists, the costs of traveling to the state capital, and limited schooling in the formal mechanisms of government, Miller found that over a period of four decades only 14% of citizen group witnesses appeared at crime hearings before Pennsylvania’s legislature.²⁷³ Moreover, 80% of these citizen groups were single-issue (e.g., Pennsylvanians Against Handgun Violence) or civil liberty (e.g., ACLU) groups, and only 20% were broad-interest citizens’ groups, such as the Alliance for the Mentally Ill or ACORN (Association of Community Organizations for Reform Now). ²⁷⁴ Other groups whose participation in crime hearings at the federal level declined over time were business and labor groups.²⁷⁵

“Broad citizen groups bring to legislators a set of problems with depth and breadth that have few simple policy solutions.”²⁷⁶ This gives these broad citizens’ groups “a character and purpose—for example, diffuse policy interests—that are difficult to convey in more formalized policy contexts.”²⁷⁷ Repeat players, such as police, prosecutors, and their lobbyists, “were highly organized and coordinated and had specific sets of policy priorities,”²⁷⁸ facilitating interactions with legislators and staffers by composing easily understood programs and possibly assisting them with ideas or legislation. Citizens’ groups, to the contrary “with [their] more diffuse interests are less likely to have specific policy proposals, which put them at a serious disadvantage in the state legislative process.”²⁷⁹ In her interviews, Miller recorded a legislator expressing hostility toward citizens’ groups on this ground.²⁸⁰ She characterizes diffuse groups as being “almost by definition, demobilized in the terms that appear to be required for participation in the state legislative process.”²⁸¹

Procedurally, these citizens are disadvantaged by process because they “have the greatest access to the legislative process at the local level, which is the policy venue with the least capacity to shape major outcomes.”²⁸² But when they do address lawmakers, their views of crime are inherently more contextual than the single-issue lobbyists or professional groups. “[C]itizens groups from [] neighborhoods [with histories of black-police tension] often have a view of crime that is intermingled with the other social and economic conditions in which they live.”²⁸³ This is tragic for their goals because “the policy environments at the state and national level decouple crime from broader economic and social issues, such as housing, blight, education, city services, and other quality-of-life concerns, which have an enormous impact on the life chances of racial minorities but which local governments are structurally ill equipped to address.”²⁸⁴

Despite these procedural difficulties, I argue that the content of diffuse citizens groups’ demands more fundamentally explains their limited success in the legislative arena. The scope of quality-of-life problems in which violence and street crime is embedded is highlighted by the fact that, despite American’s great wealth in the hands of a small super-rich population, a sizeable (if threatened) middle class,²⁸⁵ and private firms, “[i]n the OECD the US ranks 35th out of 37 in terms of poverty and inequality.”²⁸⁶ Using a measure of absolute poverty throughout the world, “there are 5.3 million Americans who are absolutely poor by global standards.”²⁸⁷ Among twenty European countries, South Korea, Australia, and Japan, three have absolute poverty rates of 0%, and thirteen have rates that range from 0.2% to 1.0%. Only four countries (Spain, Italy, Portugal and Greece) have rates higher than the 1.7% of the United States. The 5.3 million Americans in dire poverty are nearly the population of Minnesota.²⁸⁸ This American profile is linked to powerful economic forces that helped to drive the correctional system into a prison-industrial complex as good paying blue-collar jobs disappeared in the late twentieth century.²⁸⁹ While these forces are not as apparent now as the country is close to full employment, wages for working and middle-class employees are largely stagnant.²⁹⁰ The news about prison reform proposals seems to be in a state of hesitation. ²⁹¹ What is clear is that the slight downward trend in prison populations is offset by high jail,²⁹² probation and parole populations,²⁹³ making the prospect for real criminal justice reform unsure. One can expect communities whose economies were bailed out by prisons and private prison corporations to resist penal reform.²⁹⁴

Combining demands for public safety along with demands for a guarantee of social welfare rights is a losing proposition. The American polity, a fabulously wealthy state,²⁹⁵ is unable to do much to mend the quality of life of the worse off.²⁹⁶ A living wage,²⁹⁷basic housing,²⁹⁸ universal medical care including treatment for drug addiction,299 old age security,³⁰⁰ food security,301 guaranteed sanitation,³⁰² guaranteed drinking water,³⁰³ and adequate legal counsel,³⁰⁴ are inadmissible, underfunded, or contested as rights in the United States. If the United States tolerates much higher rates of poverty and is far behind other, possibly less wealthy, industrialized and post-industrialized democracies in supplying these basic rights, then one should be guarded about the prospects for policing reform.

America’s position on these factors is not an aberration. The American state from its origin has been locked in a tension characterized by James Morone as the democratic fear of government power versus the necessity of governing.³⁰⁵ Such tension has been expressed throughout our history by varying issues along economic vectors: whether the new republic “should assume an urban or an agrarian character,”³⁰⁶ Whig nationalism and internal improvements versus Democratic states’ rights,³⁰⁷ slavery or free labor,³⁰⁸ an uncontrolled market economy or a central bank, spoils to the victors versus civil service reform,³⁰⁹laissez-faire versus the general-welfare state,³¹⁰ and a great pendulum swing from the New Deal coalition to the ascendency of Reagan Republicanism,³¹¹ to lesser pendulum swings to the present day.³¹² In the mid-twentieth century, as European democracies in the aftermath of World War II were expanding the citizenship stakes of ordinary people with increased social welfare benefits, the United States continued on its pendulum swings.

This should not come as a surprise. Data compiled by Thomas Janoski³¹³ regarding the nature of modern advanced democratic states divides them, empirically, into social democratic,³¹⁴ traditional,³¹⁵ liberal,³¹⁶ and mixed³¹⁷ polities. Social or expansive democracy is based on egalitarian participation of groups and individuals whose rights and obligations are balanced. In communitarian or traditional democracies obligations take priority in safeguarding community welfare. Liberal states prioritize individual rights over social and communal obligations. ³¹⁸ Social spending is highest in traditional states, slightly lower in social democratic states, and about half the magnitude of traditional countries’ spending in liberal states. Work councils, a sign of labor’s power, exist in every traditional polity, in only two social welfare states, and in no liberal countries. Prisoner rates are lowest in the social democracies, slightly higher in traditional states and in liberal states, with one glaring exception. By the 1990s the imprisonment rate in the United States was at least four times as high as any other democratic state. And the homicide rate for the United States was from two to eight times greater than that of other democracies.³¹⁹ In short, the United States is and has always been an outlier, more classically liberal/capitalistic and conservative than other democracies. American exceptionalism, of course, is more complex than these figures suggest, ³²⁰ and America’s exceptional prison rates did not begin to explode until the 1970s. The picture, however, is one of a fitful commitment to effective government hobbled by fears, paranoid at turns, that what is normal government in other wealthy democracies will either beggar the nation,³²¹ or create a tyranny that has been feared throughout our history from factions like the anti-federalists, the No Nothings, or the Tea Party.³²²

Of course, the drift of this discussion can go too far. The core of American government and constitutionalism is fundamentally liberal and great liberal reform, and even reforms inspired by radical thought and action³²³ is a feature of the American state. My argument is simply that liberal social reform, of which police reform is a part, for the most part must struggle against powerful currents that have defined the American polity and are not likely to fundamentally change. Progressive change most likely occurs at times when the pendulum of social and economic opinion trends left. One may ask whether police reform can be indifferent to the political climate of the day. It has been remarked that the innocence movement arose at a time when harsh criminal justice and legal policies and practices regarding the death penalty, punishment, criminal procedure, habeas corpus, and the like were at their apogee.³²⁴ Wrongful conviction, however, has a different political valence; it is seen less as a liberal social policy issue and more as a neutral failure of justice and has as such gained some conservative support.³²⁵

If, as I suggest, the success of liberal police reform depends in part on the political context, there is reason to be concerned. The political picture has become unusually corrosive in the last few decades, and with the election of Donald Trump as U.S. President, it has gone over some kind of ledge.³²⁶ The influence of a plutocratic “party” has been documented³²⁷ and the legislative dysfunction apparent to any news watcher has been confirmed by scholarly observation. Political dysfunction today is fed by the vast ideological gulf between the parties, their increasing internal homogeneity, the prevalence of constituencies safe for one party or the other, the news organizations and outside groups’ reinforcement of ideological purity and extreme partisanship, and the rough parity between the parties nationally.³²⁸

I believe that the bipartisan consensus on criminal justice reform is rather thin. Aside from a seemingly permanent harsh and retributive strain in American society, exemplified by Attorney General Sessions’ resistance to most ameliorative reforms,³²⁹ conservatives’ support for criminal justice reform seems tied to their more fundamental support for a right-wing economic agenda. Right on Crime, for example, advances many policies which are in sync with reforms called for by criminologists and liberal activists. Civil asset forfeiture has “been expanded much too far”; “risk and needs assessment should be used to ensure that youths who would be most successful in non-residential programs are not placed in costly residential settings”; incarceration of drug abuse is questioned; probation as an alternative to prison should be expanded; the parole system “must include effective reentry programs”; “prison systems must be held to the highest standards of accountability”; and more attention should be given to victims’ rights. ³³⁰ At the top of the list, significantly, is a call to end overcriminalization. Unlike the 1960s’ overcriminalization agenda which targeted making “deviant” sexual activity and drug use criminal, their program summary is that:

Thousands of harmless activities are now classified as crimes in the United States. These are not typical common law crimes such as murder, rape, or theft. Instead they encompass a series of business activities such as importing orchids without the proper paperwork, shipping lobster tails in plastic bags, and even failing to return a library book.³³¹

I have already suggested that this manufactured issue, which has gulled many gifted legal scholars, is a smokescreen behind which are efforts to diminish if not end environmental regulations that impinge on the profits of the carbon-based fuel industry.³³²

I argue that limits on police reform are linked to America’s inability to reduce levels of serious poverty or deal with social and infrastructure problems,³³³ and this inability stems from policies driven by a traditional ideological mistrust of government that seems to have recently taken a destructive turn. The kind of societal/political learned helplessness (e.g., the country cannot fund social security) is dependent on the prosperity theology that drives the political right and has resulted in the recent tax cuts.³³⁴ It is not a coincidence that the Texas Public Policy Foundation (TPPF), a major conservative advocacy group and parent organization of Right on Crime, supports a full panoply of conservative social and economic policies with the partial exception of a turn toward normality in criminal justice.³³⁵ The TPPF’s conservative agenda reflects laissez-faire thinking going back at least to the mid-nineteenth century and the Reagan revolution turn to the right,³³⁶ and generally maintains that its beliefs in liberty, personal responsibility and free enterprise will happily provide enduring freedom and prosperity for all. I think the better economic argument is had by economist Joseph Stiglitz, who ties the high level of economic inequality, which harms the American economy, to policies driven by “the 1 percent.”³³⁷ The point here is not to argue economic policy, but to suggest, assuming that I am relying on better economic thinking and barring the nightmare scenario of a slide to authoritarianism, that the trend of the anti-governing ideology prevalent today in much of the Republican Party has so defunded³³⁸ and undermined the ability to govern that the ability to effect the kinds of policing reforms advocated by Freidman will be difficult or impossible to effect. This decidedly pessimistic section examines forces that militate against reform. Despite fears of a broken governing system, especially the withdrawal of Congress as an active player, ³³⁹ a return to workable government and a more balanced political system is not beyond hope and may be forthcoming in a pendulum swing either leftward toward the middle of the political spectrum.³⁴⁰ In the next section, I offer some reasons why police reform has occurred in the past and can occur in the future, but suggest that lasting changes are likely to occur over long time spans.

E. Time

1. Reform May Take Decades

Salutary changes in policing have occurred, but they tend to develop slowly. The introduction to Part II stated that social changes affecting policing over long time periods can be viewed as invisible intervening variables that explain much of the variance in policing changes over the decades. A significant example is the decline of the third-degree, the systematic and widespread use of torture by police to obtain confessions.³⁴¹ The third-degree seemed to have arisen in the 1890s, or perhaps earlier, as municipal police departments became established and as an urbanizing and industrializing America underwent immense societal strains. ³⁴² These abuses were well enough known to have been the subject of a Senate report in 1910, to criticism in a 1914 Supreme Court decision, and to a stream of newspaper criticism.³⁴³ They continued with little effective opposition in the 1920s, despite occasional negative publicity. ³⁴⁴ Of the several reports produced by the Wickersham Commission, convened by President Hoover in 1929 primarily to deal with Prohibition, the report on the third-degree— Report on Lawlessness in Law Enforcement—generated the greatest public attention.³⁴⁵ It vividly and systematically detailed the routine use of torture by the police in most cities.³⁴⁶

How did the Wickersham Commission Report affect the third-degree? The report raised a “national uproar” that police responded to with immediate repudiation by police officials.³⁴⁷ Given the Report’s galvanizing effect on public opinion, one would be gratified to hear of quick reform, especially as some jurisdictions had previously enacted local legislation against the third-degree.³⁴⁸ Instead, the decline of the third-degree seems to have occurred over several decades, although, as police brutality was not systematically recorded, this conclusion is a matter of some conjecture. Third-degree historians have traced several effects of the Report on police and other external institutions. The Report encouraged a “new generation of reform police chiefs” to continue efforts to professionalize policing.³⁴⁹ A decade after the Wickersham Commission Report, police manuals were published instructing police to replace physical beatings with psychological pressure techniques.³⁵⁰ The Report had external effects as well. “Progressive social and legal elites, who worked through organizations such as bar associations, civil liberties and civil rights groups” joined forces with police reformers, less to “professionalize” the police, and more to instill a due process culture and curb police power.³⁵¹ “Perhaps even more important, the Supreme Court in the 1930s took the first tentative steps in the direction of imposing constitutional standards on the criminal justice system.”³⁵² Brown v. Mississippi,³⁵³ in which the U.S. Supreme Court declared the use of torture to obtain a confession by state officers to be a due process violation, was in tune with the spirit of the Report on Lawlessness in Law Enforcement, which was cited in Miranda v. Arizona.³⁵⁴ Despite these internal police and external societal influences, it is hard to know when the routine use of violence faded to the point that it was an aberration from normal police procedure. A study from 1950 suggests that while the “backroom” use of force in police stations was more covert and less systematic than in the 1920s, it was still a tool used by police.³⁵⁵ Despite the universal condemnation of third-degree practices by police leaders in the 1940s,³⁵⁶ the experts cannot be sure when it ceased to be routine.

Although direct evidence has been difficult to come by, historically third-degree interrogation methods appear to have declined dramatically in the 1930s and 1940s, and further still in the 1950s, though violence sometimes persisted in smaller and more rural departments. “By the middle of the 1960s however, the revolution in interrogation practices seemed complete: Police methods appeared to become entirely psychological in nature.”³⁵⁷ To this I will add several points relevant to the review of Friedman’s enterprise. First, the “revolution” may have been more of an evolution because it took decades for the use of physical violence and psychological torture to end. But that in no way suggests that reformers, however limited their vision in hindsight, should not have proceeded. Today, we better understand that the psychological Reid method has its own limitations; it produces an unnecessary number of false confessions in relation to accurate admissions.³⁵⁸ The time is ripe for the psychological interrogation to be replaced with the investigative interview. ³⁵⁹ The possibility that today’s reform might be eclipsed by new findings that will replace the reform with something better, however, is no reason for complacency; inevitably, one change will lead to another. Finally, while Sam Walker and Richard Leo properly analyzed the effects of the Wickersham Commission report on police, the criminal justice system, public opinion, and socio-political action directly related to interrogation, it is possible that wider social changes not directly related to criminal justice created an environment in which the continuation of the third-degree was rendered impossible. It might require a social history as finely drawn as Norbert Elias’s The Civilizing Process to make this more than conjecture.³⁶⁰ I would hypothesize that shifts in the citizenship status of ordinary Americans as a result of New Deal ideology, the post-World War II valorization of the common man,³⁶¹ exemplified by the GI Bill, changes in modes of labor that narrowed the social distance between police officers and working class folks who most often suffered from the third-degree, and an expansion of rights consciousness that would play into the civil rights movement, all softened the rougher edges of American society making overt violence too out of step to sustain.³⁶² If this hypothesis is correct, that means the success of any police reform effort may depend on elements of American politics, society, and the economy that are beyond the power of reformers to control or may be unseen. Again, the hopes or fears of what society may become is no reason to not act.

2. The Time Is Ripe for Change

While some reforms may fail because they are “ahead of their time,” and others may partially succeed and partially fail as they become part of a longer reformist project that is apparent only from a future vantage point, still other reform actions may more fully succeed because the time is ripe for change. On a positive note, I suggest that American society and its justice system may have become receptive to Friedman’s campaign for democratic policing reform. One could be pessimistic and say that the spate of police killings of unarmed black men³⁶³ will generate another cycle of conflictmajor report-inaction, ³⁶⁴ without noting how much has changed for the better in policing since the 1960s and the 1980s. Such a statement can be an apologist’s tack designed to head the boat away from the rough waters of criticism.³⁶⁵ Citing only the negative, however, can be an activist’s ploy to rile up the base or simply Unwarranted and thoughtless pessimism. We can look to studies like the National Academy’s Fairness and Effectiveness in Policing³⁶⁶ to get a picture of advances in policing and in police research, but a study that better provides a binocular view of past and present is Hans Toch’s Cop Watch.³⁶⁷

Toch, a psychologist and emeritus professor of criminal justice, ³⁶⁸ engaged in pioneering studies of violence reduction methods among police and correctional officers in the 1960s.³⁶⁹ In Cop Watch, he revisits interview notes from his studies of police-citizen encounters where excessive force was at issue in the racially divided “West Coast City,” in the tumultuous period from 1967 to 1971, and compares those encounters to conflict in Seattle from 2010 to 2011. The actors in these scenes are the police, the citizen, and “the chorus”—the crowd that observes the event and that can evolve from bystanders to participants.³⁷⁰

From Toch’s study of the forces that led bystanders to become participants in street encounters and that amplified the chorus,³⁷¹ I will extract events and statements that show how police officers and officials have changed in a half century. Interviews from the chapters on urban policing in the 1960s were infused with traditional police attitudes: a reflexive belief in their own authority, the idea that any orders given to civilians must be obeyed even if not explained, and a firm sense that interference by bystanders was not to be tolerated.³⁷² In a few pages Toch speeds through the decades, from the 1960s to the 2010s, explaining how the Seattle Police Department (SPD), and other departments across the nation, experimented with one structural approach after another to handle what may be the most delicate task of democratic policing: balancing the officer’s authority with the legitimate expectations of civilians, both as subjects and as observers of police work. Police-community relations units “ghettoized” democratic policing, leaving most street cops unaffected. Team policing was a transitional and failed experiment.³⁷³

What is central to my argument is that a half-century of experimentation did not end concern for democratic policing, but instead paved the way for community policing thinking. The residue of these failed experiments, according to Toch, left behind “the precedent of providing citizens with opportunities to be listened to and to help shape the content of police services,”³⁷⁴ which is the very core of democratic policing. In keeping with Lisa Miller’s findings,³⁷⁵ when given a voice, citizens of poor communities expressed quality of life concerns, issues that did not mesh with the crimefighting mentality of most officers.³⁷⁶ Nevertheless, the problem oriented policing philosophy was tenaciously advanced by policy makers and academics. Echoing the findings of Worden and McLean,³⁷⁷ Toch observed that “[t]he rank and file of police departments have had to live with the language of these and other reformist approaches—which was typically embedded in refurbished mission statements—and have largely done so on the assumption that community-oriented proclamations need carry no implications for the business of crime fighting on the streets,” assumptions that supervisors could be expected to endorse.³⁷⁸

The major socio-technical change from the 1960s to the present that has changed the relative position of bystanders is, of course, the ubiquitous presence of video recording capability, leading to “substantial differences between the past and present” in police-community relations.³⁷⁹ In past police-citizen encounters, the chorus could rattle officers and become policy players if they rioted.³⁸⁰ The chorus that observes police-citizen encounters is no longer limited to acting only by speech and physical action. The chorus is “amplified” and if someone video records the interaction she has the ability to create a “virtual chorus,” which can expand and disseminate the recording via blogs and the like. Toch refers to this process as “clamorous chorus formation.”³⁸¹

The chapters on “Seattle 2010-2011” draw on news accounts of three incidents. The first involved an officer arresting a young African American woman for jaywalking and punching her after she resisted; the incident was recorded, amplified, played on the news, and became a local cause célèbre.³⁸² In the second major incident in downtown Seattle, an officer shot and killed a homeless, alcoholic, seriously mentally ill, Native American woodcarver carrying a wooden board who refused to drop his knife after the officer ordered him to do so. The only video of the incident, captured by the officer’s patrol car camera, was not “revealing,” but bystanders’ accounts were widely broadcast in the news media and through Internet and other channels. The incident was followed by substantial community and public responses.³⁸³ The third incident involved an officer “stomping a Black youth in a convenience store” where a drug gang may have been involved, prior interactions occurred, another officer restrained the first officer, and the video from the store’s surveillance camera was not passed by supervisors up the chain of command.³⁸⁴

Rather than detailing each response to these incidents, what I find in them that is significant for the prospects for democratic policing is how much has changed. The picture in Seattle is hardly a community policing Garden of Eden. Minority tensions still exist; police officers still harbor elements of a warrior mentality; police work on the street remains “heterogeneous, ambiguous, uncertain and dangerous;” ³⁸⁵ bureaucratic tensions exist between policing ranks; the public weighs in with criticism of police behavior; unarmed minorities are still killed and these incidents still become tinder for political fires. Nevertheless, unlike the kinds of standoffs we recall in past police and community conflicts, Seattle in the 2010s in many ways reflects a democratic policing substrate that seems like good soil for growing a more robust kind of democracy.

What has changed? Regarding the punched jaywalker, a reconciliation event, with the officer participating voluntarily, was staged, a happening that was inconceivable in the 1960s. “The police-community relationship today is obviously less polarized than that of the sixties, with an attenuation of inflexible positions, except among persons on the fringe.” ³⁸⁶ Toch speculated that the payoff of such an event was not simply to reconcile the officer and the woman, but to reduce antagonisms in the larger community. Unlike the compartmentalized police-community units of the 1970s, in 2010 any officer could play a community relations role.³⁸⁷ The event was linked to many SPD efforts to develop relationships with a wide variety of community groups under the rubric of community partnerships designed to increase mutual understanding. Even if these efforts did not convince black residents that racial profiling was eradicated, in 2010 the SPD used public opinion polling data to counter such negative perception of the police.³⁸⁸

What also changed was the creation of a police auditor role, deemed by Sam Walker to provide more effective oversight than the traditional civilian review board. ³⁸⁹ What else? Training to educate officers about racial profiling, which was the subject of a SPD Policy and Procedures Bulletin mandating that “[r]ace or ethnicity shall not be motivating factors in making law enforcement decisions.”³⁹⁰ Another policy instructed officers that people not involved in an incident “may be allowed to remain in proximity of any stop” and may comment verbally and record a stop as long as they do not obstruct.³⁹¹

A critical issue in controlling police-citizen encounters is police disengagement from messy street situations, a question posed to the auditor. In the sixties, the answer to this question was unequivocally “no.” The feeling at the time was that once an officer had initiated an intervention—no matter how silly or precipitous—he or she had to follow it through to the bitter end, because any disengagement would provide evidence of weakness and vulnerability, which would encourage perpetrators to perpetrate.³⁹² An interfering citizen was assumed to be “an incipient malefactor” out to spread lies about police. By 2010, disengagement is an accepted technique and bystanders are formally accorded the right to video record incidents. Toch’s review of the voluminous and divided public commentary about police incidents,³⁹³ which are now available in the electronic comments following news accounts, can be taken as a sign of greater democratic input known to the police department, and as necessarily tempering departmental action.

In the aftermath of the woodcarver shooting, occurring days after a new police chief was sworn in, came a loud public outcry in the blogosphere and newspaper commentary sections, rallies, news conferences by the mayor and the police chief, promises of reform in use of force training, elaborate procedural reviews of the officer’s action that allowed unprecedented civilian participation on an internal review board, an inquest, due process hearings, and the ultimate resignation of the officer from the SPD.³⁹⁴

Most important, however messy the Seattle events reported by Toch, and even in view of the subsequent federal pattern and practice suit that led to a 2017 consent decree relating to stop and frisk,³⁹⁵ it was realistic in 2011 for police leaders to contemplate changing the culture of street policing, a claim that “no liberal police chief who was of sound mind would have considered” in the 1960s. ³⁹⁶ Officers’ opinions scattered through Toch’s account show that the monolithic warrior mindset of the 1960s is now more varied, with some diversity of opinion.³⁹⁷ The way may be open to “shaping a culture from below” by inviting democratic participation of officers to participate in creating the rules to guide police action, a basic tenet of democratic policing. In short, the time for democratic policing initiatives, like the NYU Policing Project, may have arrived.

Conclusion

Unwarranted is Barry Friedman’s manifesto for democratic policing. It rolls out an accessible yet well-documented description of much that is wrong with police searches and seizures and the government’s surveillance programs. His basic prescription for reforming a problem, that arises from the misuse of governmental power, takes seriously the highest ideal and the grubbiest reality of what makes America distinctive—our standing as a selfgoverning people. Some think that liberal democracy is in peril at this moment in our political history. Setting aside the political tumult of this moment, the truly substantial problem of “policing without permission” would challenge the ability of democratic governance to rein in the agents of power at any point in American history.

Building on the message of Unwarranted, Friedman expanded his enterprise from scholarship to advocacy. He seeks to put his prescriptions into practice, primarily through the NYU Policing Project and in his work as Reporter for ALI’s Principles of Law: Policing. The bulk of this article, impressed with Friedman’s enterprise, has offered thoughts on its likely success. I put the reasons why the enterprise might fail in strong terms, in the hope that if my reasoning is cogent, the analysis will be of some use to Friedman and his partners in avoiding hazards. I have suggested that Friedman and other legal scholars reach out more to policing scholars in the social sciences. By like measure, this article advocates that policing scholars pay more attention to questions of constitutionality and legality as measures of effective police work. My concluding points offer reasons for believing that Friedman’s enterprise will be successful. While I base my forecast of success on objective reasons, whether democratic policing is sustainable as a scientific matter cannot be proven. Yet it is fitting to offer a belief in the success of Friedman’s enterprise, as democracy itself rests on faith in the people to, eventually, solve their problems.

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* Professor, Department of Criminal Justice, Wayne State University, Detroit, Michigan. This piece was written in 2018 prior to the deaths of Breonna Taylor in Louisville, George Floyd in Minneapolis, and many others at the hands of police, and the myriad legal actions and public demonstrations and events that have made police killings a major public issue.

¹✕ See Barry Friedman, Unwarranted: Policing Without Permission (2017) [hereinafter Friedman, Unwarranted].

²✕ See Policing Project, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/AS9CDDA9 (last visited Dec. 18, 2020).

³✕ See Principles of the Law: Policing, Am. Law Inst., https://perma.cc/B37E-GRHZ (last visited Dec. 18, 2020).

⁴✕ See Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev.. 1609 (2012); Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev.. 1827 (2015); Barry Friedman & Cynthia Benin Stein, Redefining What’s “Reasonable”: The Protections for Policing, 84 Geo. Wash. L. Rev.. 281 (2016).

⁵✕ See generally Ted Gest, Crime & Politics: Big Government's Erratic Campaign For Law and Order 17–39 (2001) (Criminal justice as a distinct academic discipline arose out of the ashes of the “inner city” riots by disaffected African Americans in the 1960s and the federal funding poured on policing agencies and universities by President Lyndon Johnson’s Law Enforcement Assistance Administration, which was designed to professionalize and tame the police.); Donald J. Newman, The American Bar Foundation Survey and the Development of Criminal Justice Higher Education, in Discretion In Criminal Justice: The Tension Between Individualization And Uniformity 279–349 (L. Ohlin & F. J. Remington, eds. 1993); Samuel Walker, Popular Justice: A History Of American Criminal Justice, (2d ed. 1997); Marvin Zalman, A Heuristic Model Of Criminology And Criminal Justice (1981); Malcolm Feeley, How to Think About Criminal Court Reform, 98 B.U. L. Rev.. 673, 710– 13 (2018) (In complex ways, criminal justice has expanded criminology, a discipline that emerged with other academic social science disciplines in the late 19th and early 20th centuries. Today, criminal justice and criminology can be Seen as somewhat different emphases in an “overlapped” discipline.); Samuel Walker, The Creation of the Contemporary Criminal Justice Paradigm: The American Bar Foundation Survey of Criminal Justice, 1956-1969, 9 JUST. Q. 46, 50–52 (1992).

⁶✕ See, e.g., Principles of the Law: Policing, The Ali Adviser Part Iv, https://perma.cc/5PJX- 23LE (last visited Dec. 18, 2020) (It was not until I read an outline of Chapter IV of the proposed ALI Principles of the Law: Policing, Principles of Evidence Gathering, that I found a portion of Friedman’s enterprise that related to my specialized area of research.); Marvin Zalman & Julia Carrano, Wrongful Conviction And Criminal Justice Reform: Making Justice (2014); Marvin Zalman, An Integrated Justice Model of Wrongful Convictions, 74 ALB. L. REV. 1466 (2011) [hereinafter Zalman, Integrated Model]; Marvin Zalman, Criminal Justice System Reform and Wrongful Conviction: A Research Agenda, 17 CRIM. JUST. POL’Y. REV. 468 (2006) (For more than a decade I have concentrated on wrongful conviction issues, including: avenues of social research, the incidence of wrongful conviction, the innocence movement in the U.S. and globally, innocence reform policy, wrongful conviction in China, and the place of police investigation in the innocence movement.).

⁷✕ See generally Frank Remington, Et Al., Criminal Justice Administration: Materials And Cases (1st ed. 1969). From 1967 to 1969, I taught courses in criminal law and criminal procedure as a law lecturer at Ahmadu Bello University, Zaria, Nigeria, a British-style university where law is an undergraduate degree. I later earned a Ph.D. from the School of Criminal Justice at the State University of Albany, the first of the “new style” criminal justice departments. For most of my career at Michigan State University’s criminal justice school and Wayne State University, I taught criminal procedure to undergraduate and graduate students, first from law school casebooks and then from my criminal procedure text that includes descriptions of police practices throughout. My model was a remarkable casebook that deserves notice by historians of criminal law scholarship. Frank Remington, Criminal Justice Administration: Materials and Cases, a book that molded the first generation of criminal justice “Albanians.” The most recent and probably the last edition of my text is Marvin Zalman, Criminal Procedure: Constitution & Society (6th ed. 2011).

⁸✕ See Friedman, Unwarranted, supra note 1 (including twelve chapters, a Preface, Introduction, Conclusion, and Epilogue).

⁹✕ Friedman, Unwarranted, supra note 1, at 321.

¹⁰✕ Friedman, Unwarranted, supra note 1, at xi (emphasis in original).

¹¹✕ Friedman, Unwarranted, supra note 1, at xii.

¹²✕ Friedman, Unwarranted, supra note 1, at 16 (emphasis in original).

¹³✕ See Wesley Skogan, Why Reforms Fail, 18 Policing & Soc’y 23 (2008) (citing Wesley Skogan’s insightful analysis).

¹⁴✕ Friedman, Unwarranted, supra note 1, at 45; See also Final Report of the President’s Task Force on 21st Century Policing, U. S. Department of Justice, Office of Community Oriented Policing Services (2015), https://perma.cc/627E-9479 [hereinafter President’s Task Force].

¹⁵✕ Friedman, Unwarranted, supra note 1, at 50.

¹⁶✕ See infra Part II (explaining, however desirable the goal, the sources of resistance and potential failure should be examined).

¹⁷✕ Friedman, Unwarranted, supra note 1, at 61.

¹⁸✕ Friedman, Unwarranted, supra note 1, at 61.

¹⁹✕ See Jonathan Simon, Governing Through Crime: How The War On Crime Transformed American Democracy And Created A Culture Of Fear 78–94 (2007) (explaining the concern for the victim may not be a constant but may instead expose deeper currents and needs as shifts in America’s political economy selects different “idealized subjects” of law and legislation).

²⁰✕ Friedman, Unwarranted, supra note 1, at 65.

²¹✕ Contra Samuel Walker, Governing the American Police: Wrestling with the Problems of Democracy, 2016 U. CHI. LEGAL F. 615, 642 n.175 (2016) (disagreeing, Sam Walker argues that administrative rulemaking continues to shape police behavior).

²²✕ Friedman, Unwarranted, supra note 1, at 72.

²³✕ Friedman, Unwarranted, supra note 1, at 73.

²⁴✕ Friedman, Unwarranted, supra note 1, at 76 (highlighting that Gideon was a popular decision and that inner-city riots of the late 1960s helped to turn public opinion against the Warren Court. It engendered deep resentments in the conservative precincts of white America that have been exploited by the political right to the present day). See generally Engel v. Vitale, 370 U.S. 421 (1962) (ruling on school prayer); Mapp v. Ohio, 367 U.S. 643 (1961) (arguing that it was hardly a darling of police and prosecutors); Brown v. Board, 347 U.S. 483 (1954) (ruling on desegregation).

²⁵✕ Friedman, Unwarranted, supra note 1, at 83.

²⁶✕ Friedman, Unwarranted, supra note 1, at 88.

²⁷✕ See generally Andrew Guthrie Ferguson, The Rise Of Big Data Policing: Surveillance, Race, And The Failure Of Law Enforcement (2017) (discussing the consequences of big data and algorithm-driven policing, and its impact on law enforcement).

²⁸✕ See Friedman, Unwarranted, supra note 1, at 96–101 (describing the examples of democratic action that occurred in Missouri, Virginia, Texas, Washington, California, New Jersey, and Illinois, and in school districts in Texas, Utah, and California).

²⁹✕ Friedman, Unwarranted, supra note 1, at 101.

³⁰✕ Friedman, Unwarranted, supra note 1, at 102.

³¹✕ 389 U.S. 347 (1967).

³²✕ See generally George Orwell, Nineteen Eighty-four: A Novel (1949).

³³✕ See Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018); See also Adam Liptak, In Ruling on Cellphone Location Data, Supreme Court Makes Statement on Digital Privacy, N.Y. Times (June 22, 2018), https://perma.cc/EY7J-2ZWW.

³⁴✕ See, e.g., Barry Friedman, The Worrisome Future of Policing Technology, N.Y. Times (June 22, 2018), https://perma.cc/C2H9-CJJJ (arguing that legislation and regulations are needed to control electronic surveillance).

³⁵✕ See generally Stephen J. Schulhofer, More Essential Than Ever: The Fourth Amendment In The Twenty-First Century (2012) (highlighting both the importance of Fourth Amendment issues and the need for scholars to make the dense matrix of constitutional law accessible to a wider audience).

³⁶✕ See generally Friedman, Unwarranted, supra note 1. Indeed, I was sufficiently impressed to consider adding Unwarranted as a required reading the next time my superior officers order me into the fray in a criminal procedure class.

³⁷✕ See generally Bar-Gill & Friedman, supra note 4; Friedman & Ponomarenko, supra note 4; Friedman & Stein, supra note 4.

³⁸✕ See Barry Friedman, Fixing Law Reviews, 67 Duke L.J. 1297 (2018) (writing this in the context of the impossibly prolific Friedman’s recent article on the problems with law reviews, a work that can be doubly appreciated by one who publishes in law and social science journals).

³⁹✕ Friedman, Unwarranted, supra note 1, at 92.

⁴⁰✕ See Our Mission, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/7ZJ7- TGXZ (last visited Jan. 8, 2021).

⁴¹✕ Policing Project, supra note 2 (listing Farhang Heydari and Maria Ponomarenko as deputy directors).

⁴²✕ Policing Project, supra note 2 (listing Brian Chen, Ariele LeGrand, and Regina Holloway as senior program managers).

⁴³✕ Policing Project, supra note 2 (listing Matthew Barge as a police consultant).

⁴⁴✕ Policing Project, supra note 2 (listing Katie Kinsey, Claire Duleba, and Nicole Bernardo as a program manager, administrator, and assistant, respectively).

⁴⁵✕ Policing Project, supra note 2 (listing Sunshine Hillygus, Consultant; Robert Wasserman, Distinguished Fellow; Jamelia Morgan, Research Fellow; Andrew Ferguson, Policing Data Fellow; and Ian Samuel, Policing Technology Fellow).

⁴⁶✕ See Open Positions, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/C4MGQP6H (last visited Jan. 10, 2021); Opportunities for Students, Policing Project At N.Y.U. Sch. Of Law, https://perma.cc/6PUR-6EYG (last visited Jan. 10, 2021).

⁴⁷✕ See, e.g., Our Team, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/XZ4QDMKY (last visited Jan. 10, 2021) (noting that Matthew Barge has been a federal courtappointed monitor of the DOJ-Cleveland consent decree; Andrew Ferguson, a professor of law at the University of the District of Columbia and an expert on predictive policing, big data policing, and emerging surveillance technologies, wrote The Rise Of Big Data Policing, TFerguson, supra note 27).

⁴⁸✕ Simone Weichselbaum, America’s Rock Star Cops, The Marshall Project (Oct. 16, 2015), https://perma.cc/2L4D-88J3.

⁴⁹✕ Our Partners and Founders, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/3Z9S-REZM (last visited Jan. 10, 2021).

⁵⁰✕ Id. (listing Arnold Foundation; Campbell Soup Foundation; Charles Koch Foundation; Harris Family Charitable Foundation; Joyce Foundation Incubator Fund; MacArthur Foundation; and Open Society Foundation).

⁵¹✕ Id. (listing Carlton Fields; Cleary Gottlieb Steen & Hamilton; Jenner & Block; Latham & Watkins; and Simpson Thacher & Bartlett).

⁵²✕ Id. (listing American Law Institute; Brennan Center for Justice (NYU); Center for Policing Equity (John Jay College); Cleveland Federal Monitoring Team; Grassroots Alliance for Police Accountability; Leadership Conference; National Constitution Center; National Urban League; NYU Institute of Management; Police Foundation; and Strategic Policy Partnership).

⁵³✕ Id. (listing Camden County Police; Fraternal Order of Police, Camden Lodge; California Attorney General; Chicago Police Department; LA Police Commission; City of Nashville; Nashville Metropolitan Police Department; New York Police Department; City of Tampa Citizens Review Board; Tampa Police Department; and Tucson Police Department).

⁵⁴✕ Id. (listing Chamberlain High School, Tampa, Florida; and Woodrow Wilson Excel Academy, Camden, New Jersey).

⁵⁵✕ See Statement on the Principles of Democratic Policing, Policing Project At N.Y.U. Sch. Of Law, https://perma.cc/BC4A-7E92 (last visited Jan. 10, 2021) (noting under “Key Takeaways” that “1). There should be robust engagement between police departments and the communities they serve around the policies and priorities of policing. 2). When possible, policing practices should be guided by rules and policies that are adopted in advance of action, are transparent, and are formulated with input from the public. 3). Police departments should develop and use sound metrics of success that encompass all of the goals of policing, including community trust.” One element of democratic policing not well informed in the Policing Project or in Unwarranted is organizational democracy within police departments); Todd Wuestewald and Brigitte Steinheider, Police Managerial Perceptions of Organizational Democracy: A Matter of Style and Substance, 13(1) Police Prac. & Res. 44 (2012) (describing an example of organizational democracy in one police department and qualitative research indicating that supervisors’ complaints were unfounded).

⁵⁶✕ See Applying CBA to Public Safety, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/ZH4K-XF2G (last visited Jan. 10, 2021); See also Maria Ponomarenko and Barry Friedman, Benefit-Cost Analysis of Public Safety: Facing the Methodological Challenges, 8 J. Benefit Cost Anal. 305 (2017) (providing a useful survey of the cost-benefit analysis methodology); Resources, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/UW9R- 55DS (last visited Jan. 10, 2021) (providing additional articles on CBA found under the Resources Page). Contra John Roman, Cost Benefit-Analysis of Criminal Justice Reforms, Nij Journal No. 272 (Feb. 26, 2013), https://perma.cc/N69Q-FD6G (discussing that while CBA is indeed a useful analytic tool, it is not without its concerns and limits). Friedman is more than aware of the methodological challenges of benefit-cost analysis. The Policing Project sponsored a conference of experts and their reports are reported in volume 8, number 3 of the Journal of Benefit Cost Analysis.

⁵⁷✕ See Police-Community Engagement, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/2P7Y-GJSX (last visited Jan. 10, 2021) (listing Camden, New Jersey; Chicago, Illinois; Cleveland, Ohio; Los Angeles, California; Nashville, TennesSee; New York, New York; Tampa Florida; Tucson, Arizona; Huston, Texas; Roanoke, Virginia; Asheville, North Carolina; and St. Louis, Missouri).

⁵⁸✕ See Focus Areas, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/G8UAEM3W (last visited Jan. 10, 2021) (listing front-end violence, policing tech, and re-imagining public safety as its focus areas).

⁵⁹✕ See, e.g., Our Mission, supra note 40.

⁶⁰✕ See The Manuals Initiative, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/FN75-3H4C (last visited Jan. 10, 2021).

⁶¹✕ See Blog, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/L3SN-TXNT (last visited Jan. 10, 2021) (tracking developments for these projects on the Blog page).

⁶²✕ See generally Beyond the Conversation: Ensuring Meaningful Police-Community Engagement, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/635M-74QW (last visited Jan. 10, 2021) (detailing the results of a study regarding the extent to which police departments have taken concrete steps to engage their communities and what works).

⁶³✕ See id. at 9 (noting the forms of communication included meeting with specific stakeholders, social media, regularly scheduled community meetings, participating in meetings held by different groups, community forums or listening sessions, meetings with advisory councils, and online surveys. Eighty percent of the departments reported using four or more methods.).

⁶⁴✕ Id. at 10–11 (noting that, for example, only 69% of departments sought input on the use of body-worn cameras, and less than half of the departments sought public input on a variety of other issues: use of force (35%); street cameras (15%); unmanned aerial surveillance (15%); bias-free policing (15%); mental health response (13%); training (11%); automatic license plate readers (10%); immigration (7%); community policing (7%); and youth interaction (7%)).

⁶⁵✕ Id. at 12.

⁶⁶✕ Infra Part II(B)(1).

⁶⁷✕ About ALI, Am. Law Inst., https://perma.cc/G96J-ZGXE (last visited Jan. 10, 2021); See also Officers and Council, Am. Law Inst., https://perma.cc/SVU2-8GGQ (last visited Jan. 10, 2021) (describing the ALI as being governed by eight officers and a Council of eight and between forty-two and sixty-five members, “lawyers, judges, and academics [who] reflect[] a broad range of specialties and experiences,” elected from among the membership for fiveyear terms).

⁶⁸✕ How the Institute Works, Am. Law Inst., https://perma.cc/9DCW-5BEV (last visited Dec.18, 2020) (“Restatements are primarily addressed to courts and aim at clear formulations of common law and its statutory elements . . . . Principles are primarily addressed to legislatures, administrative agencies, or private actors. They can, however, be addressed to courts when an area is so new that there is little established law. Codes (model or uniform) are addressed to legislatures with a view toward legislative enactment.”).

⁶⁹✕ Id.

⁷⁰✕ Id.

⁷¹✕ About ALI, supra note 67.

⁷²✕ See Principles of the Law, Policing, Am. Law Inst., https://perma.cc/TQ2D-49DW (last visited Jan. 10, 2021) (listing Brandon Garrett, Rachael Harmon, Tracey Meares, and Christopher Slobogin as Associate Reporters).

⁷³✕ Id. (listing Jim Burch).

⁷⁴✕ Id. (listing police officials, including one representing the Camden, New Jersey Police Department, who partnered with the NYU Policing Project).

⁷⁵✕ Id. (including Robert Wasserman, a consultant for the NYU Policing Project).

⁷⁶✕ Id. (listing Sue Rahr, Washington State Criminal Justice Training Commission and Sean Smoot, Illinois Police Benevolent and Protective Association).

⁷⁷✕ Id. (listing the International Association of Chiefs of Police, Major Cities Chiefs of Police Association, and National Association of Criminal Defense Lawyers).

⁷⁸✕ Principles of the Law, Policing, supra note 72 (listing the National Association for Civilian Oversight of Law Enforcement, Campaign Zero, and Fair and Just Prosecution).

⁷⁹✕ See id. (including ACLU; Institute for Justice; Joyce Foundation; Leadership Conference for Civil and Human Rights; NAACP Legal Defense and Educational Fund; and New America).

⁸⁰✕ See id. (listing the Heritage Foundation and CATO Institute).

⁸¹✕ Id.

⁸²✕ See Proposed Table of Contents , The Ali Adviser, https://perma.cc/Y2YC-FW2C (last visited Jan. 10, 2021) (“Use of Force will be addressed in Part III. This includes the Objectives of the Use of Force, Duty to Minimize the Use of Force, De-escalation and Force Avoidance, Proportional Use of Force, and Instructions and Warnings.”); infra Part II(B)(1) (addressing the omission of other police related issues).

⁸³✕ See infra Part II(B)(1) (indicating that Part V “will include principles that ensure that police officers are accountable within the policing agencies that employ them. The principles will describe the role that legislatures and agencies can play in articulating expectations for police conduct . . . . It will also provide principles designed to facilitate political governance of policing. These principles will highlight the significance of departmental and municipal structure in this regard, and will describe external mechanisms for evaluating policing policy and practices such as civilian review and auditing mechanisms. They will discourage practices that undermine political governance of the police, such as providing resources to policing agencies outside traditional paths of political control.”).

⁸⁴✕ See generally Brandon L. Garrett, Convicting The Innocent: Where Criminal Prosecutions Go Wrong (2011) [hereinafter GARRETT, CONVICTING]; Brandon L. Garrett, Contaminated Confessions Revisited, 101 Va .L. Rev.. 395 (2015).

⁸⁵✕ See generally John F. Kelly & Phillip K. Wearne, Tainting Evidence: Inside The Scandals At The Fbi Crime Labs (1998) (noting his role in the FBI crime lab scandal in the 1990s).

⁸⁶✕ See generally James M. Doyle, True Witness: Cops, Courts, Science, and The Battle Against Misidentification (2005).

⁸⁷✕ See generally Nate Blakeslee, Tulia: Race, Cocaine, And Corruption In A Small Texas Town (2005) (noting her work on the Tulia cases).

⁸⁸✕ See generally Alexandra Natapoff, Snitching: Criminal Informants And The Erosion Of American Justice (2009).

⁸⁹✕ See generally Ronald J. Allen & Larry Laudan, Deadly Dilemmas, 41 TEX. TECH L. Rev.. 65 (2008); Marvin Zalman, The Anti-Blackstonians, 48 Seton Hall L. Rev.. 1319 (2018).

⁹⁰✕ See generally Susan A. Bandes, Framing Wrongful Convictions, 2008 UTAH L. Rev.. 5 (2008).

⁹¹✕ See generally Eric M. Freedman, Earl Washington’s Ordeal, 29 Hofstra L. Rev.. 1089 (2001); Eric M. Freedman, Innocence, Federalism, and the Capital Jury: Two Legislative Proposals for Evaluating Post-Trial Evidence of Innocence in Death Penalty Cases, 18 N.Y.U. Rev. L. & Soc. Change 315 (1990).

⁹²✕ See Staff, Miss. Innocence Project, https://perma.cc/X78V-C33G (last visited Jan. 10, 2021) (listing Tucker Carrington as the director of the Mississippi Innocence Project); See also Radley Balko & Tucker Carrington, The Cadaver King And The Country Dentist: A True Story Of Injustice In The American South (2018).

⁹³✕ Gabriel J. Chin & Scott C. Wells, The ‘Blue Wall of Silence’ as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev.. 233 (1998).

⁹⁴✕ Lisa Kern Griffin, Silence, Confessions, and the New Accuracy Imperative, 65 Duke L.J. 697 (2016).

⁹⁵✕ Andrew D. Leipold, How the Pretrial Process Contributes to Wrongful Convictions, 42 AM. CRIM. L. Rev.. 1123 (2005); Andrew D. Leipold, The Problem of the Innocent, Acquitted Defendant, 94 Nw. U. L. Rev. 1297 (2000).

⁹⁶✕ Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 Hastings L.J. 1031 (2006).

⁹⁷✕ Itiel E. Dror & Jennifer L. Mnookin, The Use of Technology in Human Expert Domains: Challenges and Risks Arising from the Use of Automated Fingerprint Identification Systems in Forensics, 9 L. Probability & Risk 47 (2010); Jennifer L. Mnookin & Nancy West, Theaters of Proof: Visual Evidence and the Law in Call Northside 777, 13 Yale J.L. & Human. 329 (2001).

⁹⁸✕ Ellen S. Podgor, White Collar Innocence: Irrelevant in the High Stakes Risk Game, 85 CHI.- KENT L. Rev.. 77 (2010).

⁹⁹✕ L. Song Richardson, Convicting the Innocent in Transnational Criminal Cases: A Comparative Institutional Analysis Approach to the Problem, 26 Berkeley J. Int’l L. 62 (2008).

¹⁰⁰✕ I recognize that some among the jurists and practitioners may have tried important if not famous wrongful conviction cases.

¹⁰¹✕ A schematic outline of the Policing Report’s Parts and Chapters indicates that as of July 2018, ten of the fifteen chapters have been fully drafted and submitted to the project’s participants, and of these, Chapter 7 (Part III) is the only chapter that has been approved by the ALI Council and Membership. Although the schematic Seems to indicate that the approved chapter is Chapter 7, text immediately below, Status Details, states (Seemingly inconsistently) that “Portions of the five Parts of the project have been drafted. Chapter 5 (Use of Force) was approved at the 2017 Annual Meeting.” Principles of the Law, Policing, supra note 72.

¹⁰²✕ But See Jon B. Gould & Stephen D. Mastrofski, Suspect Searches: Assessing Police Behavior Under the U.S. Constitution, 3 Criminology & Pub. Pol’y 315 (2004) (citing a noted social scientific study that examined the legality of police work and found that one-third of observed searches violated the Fourth Amendment. It may be relevant that one of the authors, Gould, is a lawyer and a social scientist.); See also Illya Lichtenberg, Miranda in Ohio: The Effects of Robinette on the Voluntary Waiver of Fourth Amendment Rights, 44 HOW. L.J. 349 (2001) (describing research for a doctoral dissertation; Robinette warnings had little effect on rates of motorists’ consent to search vehicles).

¹⁰³✕ Aviram characterizes Herbert Packer’s as a “more nuanced world view” of constitutional criminal procedure than “mere partisanship,” which is nevertheless “fraught with the naïveté of . . . the ‘intellectual insularity’ of legal scholarship.” HADAR AVIRAM, Criminal Law: Taking the Constitution Seriously? Three Approaches to Law’s Competence in Addressing Authority and Professionalism, in The New Criminal Justice Thinking 156 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (internal reference omitted). A case in point is a federal judge asserting that “it is far too simple to declare that crime and punishment in America are overly harsh and only getting harsher,” without making a single reference or allusion to mass incarceration in a seventy-five-page law review article on wrongful convictions and American criminal justice; in fairness the judge stated at the outset that he would not explore issues of detention and incarceration (at 1100), but having created a silo, it was incumbent on him to stay in it. See Hon. J. Harvie Wilkinson III, In Defense of American Criminal Justice, 67 Vand. L. Rev.. 1099, 1156 (2014).

¹⁰⁴✕ See generally The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff eds., 2017).

¹⁰⁵✕ The degree of interdisciplinary work in the natural sciences is extensive. A good example concerns the study of human origins, but the cooperation of various disciplines is not easy. See, e.g., Ewen Calloway, Divided by DNA: The Uneasy Relationship Between Archaeology and Ancient Genomics, NATURE (Mar. 28, 2018), https://perma.cc/43FG-ZFBJ.

¹⁰⁶✕ See Bar-Gill & Friedman, supra note 4.

¹⁰⁷✕ Friedman, Unwarranted, supra note 1, at 320. Of course, by the time the law student ascends to the federal or state bench, she may not See much wrong with the criminal justice system needing fixing. See Wilkinson, supra note 103.

¹⁰⁸✕ See Special Edition, Innocent: The Fight Against Wrongful Convictions, Time (2017).

¹⁰⁹✕ Barry Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence: Five Days To Execution, And Other Dispatches From The Wrongly Convicted (2000); See also Keith A. Findley, Innocence Found: The New Revolution in American Criminal Justice, in Controversies In Innocence Cases In America 3–20 (Sarah Lucy Cooper ed., 2014); Robert J. Norris, Exonerated: A History Of The Innocence Movement 81–82 (2017); Zalman, supra note 5, at 1496–98.

¹¹⁰✕ Scheck Et Al., supra note 109, at 260. In an almost identical paperback edition published three years later, this reform was expanded to note that innocence projects had “been established at more than thirty-five law and journalism schools . . . .” Scheck Et Al., Actual Innocence: When Justice Goes Wrong And How To Make It Right 362 (2003).

¹¹¹✕ See Keith Findley & Larry Golden, The Innocence Movement, the Innocence Network, and Policy Reform, in Wrongful Conviction And Criminal Justice Reform: Making Justice 93–110 (Marvin Zalman & Julia Carrano, eds. 2014); Jacqueline McMurtrie, The Innocence Network: From Beginning to Branding, in Controversies In Innocence Cases In America 21– 37 (Sarah Lucy Cooper ed., 2014).

¹¹²✕ See Project Life Cycle, Am. Law Inst., https://perma.cc/KG3K-WGYQ (last visited Jan. 10, 2021) (explaining the “life cycle” of a project, which includes a preliminary draft, Council draft, tentative draft, discussion draft, proposed final draft, and official text. The expectation is that the drafts and texts will influence courts and legislators through the citation of their content). But See James Morone, The Democratic Wish: Popular Participation And The Limits Of American Government (1990) (noting that Judge Wilkinson’s concern has been a constant theme in public administration throughout American history); Edward L. Rubin, The Code, the Consumer, and the Institutional Structure of the Common Law, 75 Wash.. U. L. Q. 11 (1997) (noting that ALI products are not immune from criticism); Wilkinson, supra note 103, at 1147–57 (criticizing experts for usurping democratic legislation).

¹¹³✕ See supra Part I(C).

¹¹⁴✕ See supra Part I(C).

¹¹⁵✕ The only ALI person I could identify in such a role is Tucker Carrington, director of the Mississippi Innocence Project who, fortuitously, is an ALI member and joined the Members Consultative Group.

¹¹⁶✕ See Garrett, supra note 84; Kelly & Wearne, supra note 85; Doyle, supra note 86; Blakeslee, supra note 87; Natapoff, supra note 88; Allen & Laudan, supra note 89; Bandes, supra note 90; Freedman, supra note 91; Balko & Carrington, supra note 92; Chin & Wells, supra note 93; Griffin, supra note 94; Leipold, supra note 95; Backus & Marcus, supra note 96; Dror & Mnookin, supra note 97; Podgor, supra note 98.

¹¹⁷✕ See generally Richard A. Leo, Rethinking the Study of Miscarriages of Justice: Developing a Criminology of Wrongful Conviction, 21 J. Contemp. Crim. Just. 201 (2005).

¹¹⁸✕ Herrera v. Collins, 506 U.S. 390 (1993); See, e.g., Vivian Berger, Herrera v. Collins: The Gateway of Innocence for Death-Sentenced Prisoners Leads Nowhere, 35 WM. & MARY L. Rev.. 943 (1994).

¹¹⁹✕ Some of the subjects found in the law review literature include the roles of defense attorneys, prosecutors, forensic scientists/technicians, judges, and juries; a range of issues related to the forensic sciences and related issues of evidentiary accuracy and expert witnesses; the death penalty; eyewitness identification and lineups; interrogations and confessions; child witnesses; case studies of wrongful convictions; police investigation and the preservation of evidence; tunnel vision and cognitive biases; jailhouse snitches and informants generally; access to post-conviction DNA review and privacy concerns with DNA collection; the general accuracy and fairness of pre-trial procedures, plea bargaining, trials, appellate processes, and post-conviction review; consideration of the after-effects of wrongful convictions and compensation through civil rights actions or federal and state compensation statutes; and comparative and international variations on these themes.

¹²⁰✕ See Daniel Givelber & Amy Farrell, Not Guilty: Are The Acquitted Innocent? (2012); Jon B. Gould, The Innocence Commission: Preventing Wrongful Convictions And Restoring The Criminal Justice System (2007); David Harris, Failed Evidence: Why Law Enforcement Resists Science (2012); Richard A. Leo, Police Interrogation And American Justice (2008); Erin E. Murphy, Inside The Cell: The Dark Side Of Forensic Dna (2015); Daniel S. Medwed, Prosecution Complex: America’s Race To Convict And Its Impact On The Innocent (2012); Alexandra Natapoff, Snitching: Criminal Informants And The Erosion Of American Justice (2009); George C. Thomas, Iii., The Supreme Court On Trial: How The American Justice System Sacrifices Innocent Defendants (2008); Sandra Guerra Thompson, Cops In Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories (2015); Deborah Tuerkheimer, Flawed Convictions: “shaken Baby Syndrome” And The Inertia Of Injustice (2014); Garrett, Convicting, Supra Note 84; Balko & Carrington, supra note 92.

¹²¹✕ Principles of the Law, Policing, supra note 72.

¹²²✕ See, e.g., Brian Cutler, Keith A. Findley & Danielle Loney, Expert Testimony on Interrogation and False Confession, 82 UMKC L. Rev.. 589 (2014); See also Brian. L. Cutler, Expert Testimony On The Psychology Of Eyewitness Identification (2009).

¹²³✕ See Richard A. Leo, Police Interrogation, False Confessions, and Alleged Child Abuse Cases, 50 U. MICH. J.L. REFORM 693 (2017).

¹²⁴✕ See, e.g., Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De-Escalation, Preseizure Conduct, and Imperfect Self-Defense, 2018 U. ILL. L. Rev.. 629 (2018). Professor Lee is a member of the ALI consultative group.

¹²⁵✕ See Herbert Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COLUM. L. Rev.. 1425 (1968) (providing background and an overview by the MPC’s Chief Reporter). My skepticism derives in part from my view that the ALI Model Penal Code (MPC), while a worthwhile project, had a relatively limited positive impact and was irrelevant to the major transformations in criminal law and criminal justice in the last half century. Fred Cohen, Criminal Law Legislation and Legal Scholarship, 16 J. LEGAL EDUC. 253 (1964). An early proponent of the MPC nevertheless saw its greater value in stimulating cross-disciplinary scholarship. Edwin W. Hecker, Jr., Sentencing Reform and the Michigan Revised Criminal Code, 14 Wayne L. Rev.. 891 (1968). The sections on sentencing and punishment are relics frozen in the time of a gentler era that for all their hope a half century ago did nothing to stop the onslaught of forces that resulted in mass incarceration. Jerold H. Israel, The Process of Penal Law Reform—A Look at the Proposed Michigan Revised Criminal Code, 14 Wayne L. Rev.. 772 (1968). I live in a state that failed to pass an MPC-type codification. Jarrett Skorup, How to Deal with Michigan’s Vast Criminal Code, Capcon A Michigan News Source (Feb. 12, 2015), https://perma.cc/67C9-QLX4 (noting that some minor negatives have been raised about the archaic form of Michigan’s penal code); See, e.g., Ronald Lampard, The Time to Hesitate is Through: The Number of Laws Criminalizing Innocent Conduct Is a Touch Too Much, Am. Legis. Exchange Council (Feb. 5, 2018), https://perma.cc/EM32-VLQB. Yet, I find it hard to believe that prosecution and criminal justice differ much in states with MPCtype penal codes compared to states without the more logical codes. Indeed, scare stories like that of Skorup’s are driven by the hysteria about overcriminalization, which I suspect is a cover by extreme right-wing business interests designed to hobble effective enforcement of federal environmental and other regulatory laws. Despite scads of sky-is-falling law review articles on the “scourge” of overcriminalization, a careful empirical analysis uncovers what appears to be a moral panic. See Susan R. Klein and Ingrid B. Grobey, Debunking Claims of Over-Federalization of Criminal Law, 62 Emory L.J. 1 (2012). To be clear, I think that the MPC was a signal achievement and that it is better for a state to adopt a coherent code than not; indeed, I believe that the restraints of criminal law theory exert a civilizing influence on society. See Marvin Zalman, The Federal Anti-Riot Act and Political Crime: The Need for Criminal Law Theory, 20 Vill. L. Rev.. 897 (1975) [hereinafter Zalman, Riot Act]; Marvin Zalman et al., Michigan’s Assisted Suicide Three Ring Circus, 23 OHIO N.U. L. Rev.. 863 (1997); Jonathan Simon, The Second Coming of Dignity, in The New Criminal Justice Thinking 275, 275–307 (Sharon Dolovich & Alexandra Natapoff eds., 2017). Nineteenth century criminal law codification and the nullum crimen sine lege ideology, i.e., the principle of legality, had a democratic, modernizing and progressive influence on criminal law but this project needs revivifying with dignity principles. See Jerome Hall, General Principles Of Criminal Law 27–69 (2d ed. 1960) (regarding the principle of legality). Returning to the MPC, I find it ironic that a staunch MPC supporter who argued that it would be a mistake to view the Code as “mere professional distractions,” nevertheless had it right when he listed the gamut of criminal justice issues that have had huge social impacts and about which the MPC was silent: Consider, for example, the acute and sustained public fear of crime and the concomitant emergence of crime as a national political issue; the persistence of racial prejudice in the administration of justice; the perplexities of the racial demographics of crime; the constitutionalization of police practices and criminal procedure by the Supreme Court; the growing attention to the issue of the rights of crime victims; the discovery of endemic discretion in criminal justice as a threat to rule-of-law values; the American Bar Foundation's path-breaking studies of the realities of the workings of the criminal justice system; the emergence of plea bargaining from the closet and its validation by the Supreme Court; and the disappearance and reappearance of capital punishment, as the Supreme Court backed and filled in its struggle with the constitutional issues. Sanford H. Kadish, Fifty Years of Criminal Law: An Opinionated Review, 87 Cal. L. Rev..943, 945–46 (1999); Diane Dimond, Every State Should Adopt ‘Second Look Sentencing,’ THE ALI ADVISOR (July 27, 2018), http://www.thealiadviser.org/sentencing/every-state-should-adoptsecond- look-sentencing. Although the ALI is now revising the MPS to inject more reasoned sentencing provisions, it Seems to me to be following rather than leading the curve.

¹²⁶✕ See e.g., Friedman, Unwarranted, supra note 1, at 45 (citing Skogan, supra note 13, and treating it as a cautionary marker about police culture but not proposing ways to deal with its concerns). I temper this criticism by mentioning that the copious footnotes to Friedman, Unwarranted do cite policing scholars.

¹²⁷✕ Prominent names that come to mind include Geoffrey Alpert, Karen Amendola, David Bayley, Anthony Braga, Steven Brandl, David Carter, Gary Cordner, John Crank, John Eck, Robin Engel, Jim Frank, Lorie Fridell, the late Jim Fyfe, Herman Goldstein, Jack Greene, Larry Hoover, George Kelling, David Kennedy, David Klinger, Bob Langworthy, Cynthia Lum, Peter Manning, Stephen Mastrofsky, Lorraine Mazzerole, Ken Novak, Eugene Paoline, Dennis Rosenbaum, Larry Sherman, Wes Skogan, Brad Smith, William Terrill, David Weisburd, Sam Walker, and Rob Worden. My apologies to any I have skipped over; in anticipatory defense, I am not a policing specialist. My list excludes criminologists and other social scientists who have published research on police but whose work does not mark them as policing specialists. Note that, although none of the policing social scientists on my list are directly affiliated with the NYU Policing Project, Cynthia Lum and Sam Walker have been tapped as advisers to the ALI project. For a review of the scope of empirical police research, although more than a decade old, See National Research Council & Committee To Review Research On Police Policy And Practices, Fairness And Effectiveness In Policing: The Evidence ch. 2 (Wesley Skogan & Kathleen Frydl eds., 2004) [hereinafter Fairness In Policing].

¹²⁸✕ One research area that has surprisingly been understudied is police investigation in general, a point I have noted in two publications: Marvin Zalman, The Detective and Wrongful Conviction, in Wrongful Conviction And Criminal Justice Reform: Making Justice 147, 147–63 (Marvin Zalman & Julia Carrano eds., 2014), and Marvin Zalman & Matthew Larson, Elephants in the Station House: Serial Crimes, Wrongful Convictions, and Expanding Wrongful Conviction Analysis to Include Police Investigation, 79 Alb. L. Rev.. 941 (2015). Aside from a position paper on point, I know of no research on the general issue, although a great deal of wrongful conviction action and research focuses on specific issues related to line-ups, interrogation, and use of informants. See Anthony W. Batts, Maddy deLone & Darell W. Stephens, Policing and Wrongful Convictions, New Perspectives In Policing (Aug. 2014), https://perma.cc/QWL8-S53N.

¹²⁹✕ Another silo issue is policing scholars and police officers or officials. See generally Brigitte Steinheider et al., In Search of a Methodology of Collaboration: Understanding Researcher- Practitioner Philosophical Differences in Policing, 13.4 Police Prac. & Res. 357 (2012) (researchers, researchers with prior police experience, and police officers differ significantly along operating philosophies of pragmatism, intellectualism, and humanism, in sync with stereotypes, but value differences do not indicate significant differences between groups in terms of collaboration climate, conflict, and knowledge integration; practitioners evaluate outcomes of research collaboration significantly less positively than researchers).

¹³⁰✕ The 2004 National Academy of Sciences study commented that “[t]he cascade of peerreviewed research on the police since 1967 has been part of the development of criminal justice studies generally.” Noting that nine of twelve highly regarded criminology and criminal justice research journals were initiated after 1967, “[a]ltogether these journals have published over 6,900 articles dealing with the police and law enforcement.” FAIRNESS IN POLICING, supra note 127. See generally Skogan, supra note 13.

¹³¹✕ The agency problem, or principal-agency theory, is more a concern to corporate lawyers and scholars in the world of law and economics. But See Richard H. McAdams et al., Punitive Police? Agency Costs, Law Enforcement, and Criminal Procedure (Coase-Sandor Institute For Law And Econom,Ics Working Paper No. 644, 2015), https://perma.cc/PN3P- 4H47. Among criminal law scholars, the issue has been noted by: William J. Stuntz, The Collapse Of American Criminal Justice 37–38 (2011); Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. PA. L. Rev.. 959, 963, passim (2009); William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. Rev.. 505, 549–50 (2001).

¹³²✕ Heather Schoenfeld, Violated Trust: Conceptualizing Prosecutorial Misconduct, 21 J. Contemp. Crim. Just. 250, 259 (2005).

¹³³✕ Id.

¹³⁴✕ Ferguson, supra note 27.

¹³⁵✕ Ferguson, supra note 27, at 259.

¹³⁶✕ This was an issue in a Seattle Police Department incident as reported below. See infra text accompanying note 363.

¹³⁷✕ HANS Toch, Cop Watch: Spectators, Social Media, And Police Reform (2012) [hereinafter Toch, Cop Watch].

¹³⁸✕ Skogan, supra note 13, at 23.

¹³⁹✕ See Skogan, supra note 13, at 24.

¹⁴⁰✕ Skogan, supra note 13, at 25.

¹⁴¹✕ Skogan, supra note 13, at 25.

¹⁴²✕ See Skogan, supra note 13, at 26–27.

¹⁴³✕ See Skogan, supra note 13, at 27.

¹⁴⁴✕ See Adeshina Emmanuel, How Union Contracts Shield Police Departments from DOJ Reforms, IN THESE TIMES (June 21, 2016), https://perma.cc/9ECD-AHZH; Skogan, supra note 13, at 28.

¹⁴⁵✕ See Skogan, supra note 13, at 29.

¹⁴⁶✕ See Skogan, supra note 13, at 29.

¹⁴⁷✕ See Skogan, supra note 13, at 30.

¹⁴⁸✕ See Skogan, supra note 13, at 30–31.

¹⁴⁹✕ See Skogan, supra note 13, at 31.

¹⁵⁰✕ See generally Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 BUFF. Jon L. Rev.. 1275 (1999) (providing instances where local court rulings abetted police torture); Burge, Wikipedia, https://perma.cc/Q623-X9C8 (last visited Jan. 11, 2021) (providing that a sustained period of torture, for at least a decade, existed in one Chicago investigative precinct).

¹⁵¹✕ See Robert E. Worden & Sarah J. Mclean, Mirage Of Police Reform: Procedural Justice And Police Legitimacy 33–40 (2017) (providing information regarding a study set in Schenectady, New York (population 66,000; 158 sworn officers), and Syracuse, New York (population 145,000; 485 sworn officers)).

¹⁵²✕ Worden & Mclean, supra note 151, at 182.

¹⁵³✕ Worden & Mclean, supra note 151, at 15–17, 23–29, 31 (providing that in the last several decades the institutional environment of policing has been modified by countless efforts toward community policing, public accountability, and management accountability, and a body of research has shown some change but a limited success for the stated goals of these projects. Two findings of relevance to Friedman’s enterprise is the suggestion that the success of use-of-force policies “will be contingent on the will of administrator and supervisors to enforce the policies,” and that “expanding officers’ discretion is not entirely compatible with demands for public accountability and administrative rule making.”).

¹⁵⁴✕ Fairness In Policing, supra note 127.

¹⁵⁵✕ Fairness In Policing, supra note 127, at 217–326; See, e.g., Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 CRIME & JUST. 283 (2003).

¹⁵⁶✕ See Juliana Menasce Horowitz & Gretchen Livingston, How Americans View the Black Lives Matter Movement, PEW RES. CTR. (July 8, 2016) https://perma.cc/VGX9-3YE9; Ciara McCarty & Sabrina Siddiqui, FBI Director Concedes He Has Little Evidence to Support ‘Ferguson Effect,’ THE GUARDIAN (Oct. 26, 2015), https://perma.cc/A4V2-KRJ7 (noting an uptick of violence and homicide in some cities led some, with then FBI Director James Comey among the most prominent, to hypothesize a “Ferguson effect” by which police withdraw from policing); See also Justin Nix & Scott E. Wolfe, Sensitivity to the Ferguson Effect: The Role of Managerial Organizational Justice, 47 J. Crim. Just. 12 (2016) (noting organizational justice affects police officers’ motivational feelings); David C. Pyrooz et al., Was There a Ferguson Effect on Crime Rates in Large U.S. Cities?, 46 J. Crim. Just. 1 (2016) (discounting the so-called Ferguson effect); Richard Rosenfeld, Documenting and Explaining the 2015 Homicide Rise: Research Directions, Nat’l Inst. Of Just. 18–23 (June 2016), https://perma.cc/E6EG-AUKS (noting the concept is confounding but there may be some empirical support).

¹⁵⁷✕ See Isaiah Berlin, Joseph de Maistre and the Origins of Fascism, in The Crooked Timber Of Humanity: Chapters In The History Of Ideas 91–174 (1991); Robert O. Paxton, The Five Stages of Fascism, 70 J. Mod. Hist. 1, 7 (1998) (noting an element of fascism is redemptive violence or “the beauty of violence and of will” devoted to the group’s “success in a Darwinian struggle”); Philip Bump, Trump’s Speech Encouraging Police to be ‘Rough,’ Annotated, Wash.. Post (July 28, 2017), https://perma.cc/8NJF-Z7HT (noting the contingent and fraught nature of this ideal is put into question by a President who has valorized unwarranted police violence and has unleashed divisive and racist elements in American society that echo the Fascist ideology of violence); Caroline Simon, ‘Unite the Right’ Anniversary: White Nationalists Planning to Rally in D.C., USA TODAY, https://perma.cc/8NSFLKPC (last updated July 24, 2018, 4:45 PM EST) (noting the far-right sentiment is “increasingly visible” in America but alt-right groups are divided); President’s Task Force, supra note 14 (discussing “Building Trust and Legitimacy” as the first of six “pillars of policing”).

¹⁵⁸✕ See Fairness In Policing, supra note 127, at 298 (“While legitimacy can be a general feeling of obligation or responsibility to obey that encourages deference in any situation, it is also something that is created by individual police officers in an encounter with members of the public.”); Tyler, supra note 155, at 284 (“[P]eople’s reactions to legal authorities are based to a striking degree on their assessments of the fairness of the processes by which legal authorities make decisions and treat members of the public.”).

¹⁵⁹✕ See, e.g., Policing Project, Policing Project At N.Y.C Sch. Of Law, https://perma.cc/6APP-SEXD (last visited Dec. 18, 2020).

¹⁶⁰✕ Worden & Mclean, supra note 151, at 102 (“[S]urvey-based measures of citizens’ judgments about procedural justice are much better developed than observation-based measures of officers’ overt behavior.”).

¹⁶¹✕ Fairness In Policing, supra note 127, at 291.

¹⁶²✕ Worden & Mclean, supra note 151, at 102–03 (noting that what police or other workers do cannot be accurately derived from customer surveys or from retrospective accounts. We know best what street cops actually do from painstaking and scientifically valid observations derived from systematic social observations (SSO) in which the officers to be observed are drawn by probability sampling and the observations are coded in the forms of standardized measurement categories.).

¹⁶³✕ See Worden & Mclean, supra note 151, at 14–33 (noting that because police reform occurs in an institutional context, the study reviewed organizational perspectives of police and the changing institutional environment that includes community policing, and public and management accountability in general).

¹⁶⁴✕ See Worden & Mclean, supra note 151, at 10, 12.

¹⁶⁵✕ See Worden & Mclean, supra note 151, at 10 (noting a total of 3,603 phone interviews, or approximately 100 per month in each city, were conducted). 166 See Worden & Mclean, supra note 151, at 61–62.

¹⁶⁷✕ See Worden & Mclean, supra note 151, at 88–100 (referring to Chapter 5).

¹⁶⁸✕ See generally Worden & Mclean, supra note 151, at 149 (noting that police managers do not typically measure the procedural justice of police-citizen interactions. So, Worden and McLean “sought to rectify this omission, if only for a finite period of time” by presenting summaries of their procedural justice surveys that supplemented the departmental Compstat meetings’ focus on “crime as an outcome.” Simultaneously, police managers in both cities made efforts to “manage these outcomes.”).

¹⁶⁹✕ See Worden & Mclean, supra note 151, at 101–29 (referring to Chapter 6), 204–08 (presenting the methodological appendix).

¹⁷⁰✕ See Worden & Mclean, supra note 151, at 71–73.

¹⁷¹✕ See Worden & Mclean, supra note 151, at 74–77 (depicting that “[i]n general, 70 to 80 percent of the citizens report very or somewhat favorable experiences on each component of procedural justice . . .”).

¹⁷²✕ See Worden & Mclean, supra note 151, at 82–85 (finding that all the measures were very close in Syracuse and Schenectady).

¹⁷³✕ See Worden & Mclean, supra note 151, at 88–100.

¹⁷⁴✕ See Worden & Mclean, supra note 151, at 126–28.

¹⁷⁵✕ See Worden & Mclean, supra note 151, at 154 (noting that “[n]either city had the funds to continue such surveying indefinitely; indeed, we are aware of no city that does (or has done) such ongoing surveys with sufficient frequency that they are useful for management accountability”).

¹⁷⁶✕ Worden & Mclean, supra note 151, at 153.

¹⁷⁷✕ See Worden & Mclean, supra note 151, at 166–77.

¹⁷⁸✕ Worden & Mclean, supra note 151, at 12.

¹⁷⁹✕ Worden & Mclean, supra note 151, at 178.

¹⁸⁰✕ Worden & Mclean, supra note 151, at 62, 179 (noting that “[i]n general, two-thirds to three-quarters of the people with whom police had contact during the eighteen months of the survey expressed trust and confidence in the police”).

¹⁸¹✕ See Worden & Mclean, supra note 151, at 132–44.

¹⁸²✕ See Worden & Mclean, supra note 151, at 132.

¹⁸³✕ See Gregory F. Treverton Et Al., Moving Toward The Future Of Policing (2011) (explaining recent concerns of organized criminal threats to society); Austin Turk, Political Criminality: The Defiance And Defense Of Authority 115–66 (1982); Friedman, Unwarranted, supra note 1, at 282–306 (showing that chapter 12 explains the trend to push lawmakers and judges to less “liberal” positions).

¹⁸⁴✕ See generally Emily Owens et al., Can You Build a Better Cop? Experimental Evidence on Supervision, Training, and Policing in the Community, 17 Criminology & Pub. Pol’y 41 (2018).

¹⁸⁵✕ See generally Daniel Kahneman, Thinking, Fast And Slow 13 (2011) (describing “slow thinking” as “a slower, more deliberate and effortful form of thinking”).

¹⁸⁶✕ Owens et al., supra note 184, at 48. 187 Owens et al., supra note 184, at 53.

¹⁸⁸✕ Owens et al., supra note 184, at 53 (internal notes omitted).

¹⁸⁹✕ Owens et al., supra note 184, at 43.

¹⁹⁰✕ Owens et al., supra note 184, at 59.

¹⁹¹✕ Owens et al., supra note 184, at 60–65.

¹⁹²✕ Owens et al., supra note 184, at 73, 75.

¹⁹³✕ See generally Lorraine Mazzerole & William Terrill, Making Every Police-Citizen Interaction Count: The Challenges of Building a Better Cop, 17 Criminology & Pub. Pol’y 89 (2018).

¹⁹⁴✕ Gould & Mastrofski, supra note 102; Lichtenberg, supra note 102; See also Kenneth Novak Et Al., Police & Society 58–93 (7th ed. 2017)(including an obligatory chapter on legal issues, but in addition to citations to Supreme Court cases, the only empirical studies cited refer to use of force, community policing, and civil liability, but not the Gould and Mastrofski study).

¹⁹⁵✕ See, e.g., Brian Forst Et Al., What Happens After Arrest? A Court Perspective Of Police Operations In The District Of Columbia (1977); Peter Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 Am. B. Found. Res. J. 585 (1983); Craig D. Uchida & Timothy S. Bynum, Search Warrants, Motions to Suppress and “Lost Cases”: The Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J. Crim. L. & Criminology 1034 (1991).

¹⁹⁶✕ E.g., Herring v. United States, 555 U.S. 135 (2009); United States v. Leon, 468 U.S. 897 (1984); United States v. Calandra, 414 U.S. 338 (1974).

¹⁹⁷✕ See, e.g., Albert Meehan & Michael Ponder, How Roadway Composition Matters in Analyzing Police Data on Racial Profiling, 5 Police Q. 306 (2002); Kenneth Novak, Disparity and Racial Profiling in Traffic Enforcement, 7 Police Q. 65 (2004).

¹⁹⁸✕ E.g., Gary Sweeten, What Works, What Doesn’t, What’s Constitutional? The Problem with Assessing an Unconstitutional Police Practice, 15 Criminology & Pub. Pol’y. 67 (2015) (raising the question of constitutionality); David Weisburd et al., Do Stop, Question, and Frisk Practices Deter Crime? Evidence at Microunits of Space and Time, 15 Criminology & Pub. Pol’y. 31 (2015).

¹⁹⁹✕ 392 U.S. 1 (1968).

²⁰⁰✕ E.g., Geoffrey P. Alpert et al., Police Suspicion and Discretionary Decision Making During Citizen Stops, 43 Criminology 407 (2005); Weisburd et al., supra note 198. 201 See generally Gould & Mastrofski, supra note 102 (posing research questions about police stops that explicitly asked whether the stops met constitutional standards).

²⁰²✕ Fairness In Policing, supra note 127, at 252–90.

²⁰³✕ Mapp v. Ohio, 367 U.S. 643 (1961).

²⁰⁴✕ Gould & Mastrofski, supra note 102; See, e.g., Fairness In Policing, supra note 127, at 264–65.

²⁰⁵✕ Fairness In Policing, supra note 127, at 258 (referring to interrogation research, but the point applies to search and seizure activity as well).

²⁰⁶✕ See Candace McCoy, Criminal Courts and Legal Studies: The Marginalized Core, 4 J. CRIM. JUST. EDUC. 235, 235–36 (1993) (describing legal studies as “marginalized” in criminology and criminal justice a quarter century ago). For the most part I do not think this has changed. Studying courts is done over in the political science department and law tends to be taught by part time instructors.

²⁰⁷✕ 471 U.S. 1 (1985); See Jerome H. Skolnick & James J. Fyfe, Above The Law: Police And The Excessive Use Of Force 41–42 (1993); James Fyfe, Police Use of Deadly Force: Research and Reform, 5 JUST. Q. 165, 200 (2006); Abraham N. Tennenbaum, The Influence of the Garner Decision on Police Use of Deadly Force, 85 Criminology 241, 245 (1994).

²⁰⁸✕ Cynthia J. Bowling & J. Mitchell Pickerill, Fragmented Federalism: The State of American Federalism 2012–13, 43 Publius 315, 315 (2013).

²⁰⁹✕ See, e.g., Stephen D. Mastrofski & James J. Willis, Police Organization Continuity and Change: Into the Twenty-first Century, 39 Crime And Just. 55, 59–62 (2010) (discussing how some steps toward consolidation have occurred).

²¹⁰✕ Feeley, supra note 5, at 675 (citations omitted); Doyle, supra note 86, at 74 (describing the American “criminal justice system,” if a system at all, as organic and as “an ecosystem like a swamp or estuary, not an arrangement of gears and switches”).

²¹¹✕ Morone, supra note 112, at 322 (referring to the antistatist ideology in American thought being reflected in “chaotic institutional fragmentation” (celebrated as checks and balances)).

²¹²✕ Morone, supra note 112, at 323; See Charles O. Jones, An Introduction To The Study Of Public Policy 1–20 (3d ed. 1984).

²¹³✕ David Alan Sklansky, Democracy And The Police 106 (2008) (describing how “[t]he two stories, the transformation in democratic theory and the transformation in policing, are rarely set side by side, but in fact they are strongly linked”).

²¹⁴✕ See Everett M. Rogers, Diffusion Of Innovations (5th ed. 2003) (discussing an entire social theory—the diffusion of innovations—that was developed to explain the process of policy adoption among individuals as well as fragmented institutions).

²¹⁵✕ Friedman, Unwarranted, supra note 1, at 315. See generally Doyle, supra note 86, at 69–81; Stanley Z. Fisher, Eyewitness Identification Reform in Massachusetts, 91 MASS. L. Rev.. 52 (2008) (describing a fascinating example of such diffusion in the realm of innocence reform is the work of Kenneth Patenaude, a captain in the Northampton, Mass., Police Department, who participated in the eyewitness identification task force initiated by Janet Reno. Although the cops were initially skeptical of the idea that reforming the conduct of lineups along lines generated by psychology research, Patenaude came to See the light. When he returned home he talked up the idea and is spread among neighboring police departments.) Patenaude and another great police reformer wrote a book on the issue that speaks to police in ways that research literature may not. See Sergeant Paul B. Carroll & Captain Ken Patenaude, Eyewitness Identification: A Police Perspective (2011).

²¹⁶✕ See John P. Heinz & Peter M. Manikas, Networks Among Elites in a Local Criminal Justice System, 26 L. & SOC’Y. REV. 831 (1992).

²¹⁷✕ Friedman, Unwarranted, supra note 1, at 96–101.

²¹⁸✕ See generally Lincoln Caplan, Our Towns, Hardvard Magazine (May–June 2018), https://perma.cc/F4E8-WCXU; James Fallows, The Reinvention of America, The Atlantic (May 2018), https://perma.cc/FVL6-34RG; James Fallows, How America Is Putting Itself Back Together, The Atlantic (Mar. 2016), https://perma.cc/CDV4-MNTX; Marc Lacey, What Two Writers Found When They Bought a Plane and Touched down on Main Street, U.S.A., N.Y. Times (June 12, 2018), https://perma.cc/44LS-WYJ8.

²¹⁹✕ See generally Keith A. Findley, The Federal Role in the Innocence Movement in America, 33 J. Contemp. Crim. Just. 61 (2017).

²²⁰✕ See generally Samuel Walker, The New World Of Police Accountability (2005).

²²¹✕ See generally Benjamin N. Cardozo, The Nature Of The Judicial Process (1921); Oliver Wendell Holmes, The Common Law (1881).

²²²✕ See Kermit L. Hall, The Magic Mirror: Law In American History 124–25 (1989). See generally Morton J. Horwitz, The Transformation Of American Law, 1780-1860, at 63–108 (1977).

²²³✕ Edward Levi, An Introduction To Legal Reasoning (1949).

²²⁴✕ See generally Robert Merton, Social Theory And Social Structure (1957) [hereinafter Merton, Social Theory]; Robert K. Merton, The Unanticipated Consequences of Purposive Social Action, 1 Am. Soc. Rev. 894 (1936) [hereinafter Merton, Unanticipated Consequences].

²²⁵✕ See generally McClesky v. Kemp, 481 U.S. 279 (1987) (whitewashing the death penalty of a charge of legal racism that could have judicially terminated that form of punishment); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (holding resulted in the denaturing of consent); Jeffrey L. Kirchmeier, Imprisoned By The Past: Warren Mccleskey And The American Death Penalty (2015).

²²⁶✕ See Friedman, Unwarranted, supra note 1, at 45; Worden & Mclean, supra note 151, at 4.

²²⁷✕ See President’s Task Force, supra note 14.

²²⁸✕ See Michelle Alexander, The New Jim Crow: Mass Incarceration In The Age Of Colorblindness 61–69, 109–23 (2010). See generally Matthew Lippman, The Drug War and the Vanishing Fourth Amendment, 14 Crim. Just. J.

²²⁹✕ (1992). 229 Martin Shapiro, Courts: A Comparative And Political Analysis 25–26 (1981).

²³⁰✕ Shapiro, supra note 229, at 1–5.

²³¹✕ Shapiro/, supra note 229, at 26–27; See also Paul Butler, Poor People Lose: Gideon and the Critique of Rights, 22 YALE L.J. 2176, 2178 (2013) (“The reason that prisons are filled with poor people, and that rich people rarely go to prison, is not because the rich have better lawyers than the poor. It is because prison is for the poor, and not the rich. In criminal cases poor people lose most of the time, not because indigent defense is inadequately funded, although it is, and not because defense attorneys for poor people are ineffective, although some are. Poor people lose most of the time because in American criminal justice, poor people are losers. Prison is designed for them.”).

²³²✕ Shapiro, supra note 229, at 27.

²³³✕ Zalman, supra note 89, at 1417 (“Police officers who patrol lower-income black communities tend to comment on the high rates of violence they encounter in moralistic ways, according to their apparent levels of education and comprehension, but their expressions of frustration are understandable given that they often confront violence and disorder more or less on their own.”). See generally David Couper, Behind the Badge: What Cops Think, IMPROVING POLICE (Jan. 12, 2017), https://perma.cc/65A7-UF27; Peter Nickeas, What Cops Know, CHI. MAG. (June 26, 2017), https://perma.cc/V4TK-TBVT.

²³⁴✕ See JAmes Q. Wilson, Varieties Of Police Behavior: The Management Of Law And Order In Eight Communities 227 (1968).

²³⁵✕ See generally Alexander, supra note 228.

²³⁶✕ See generally, e.g., David Garland, The Culture Of Control: Crime And Social Order In Contemporary Society (2001); Diana A. Gordon, The Justice Juggernaut: Fighting Street Crime, Controlling Citizens (1990); Peter Kraska, Theorizing Criminal Justice: Eight Essential Orientations (2004); Travis C. Pratt, Addicted To Incarceration: Corrections Policy And The Politics Of Misinformation In The United States (2009); Simon, Supra Note 19; Michael Tonry, Malign Neglect—race, Crime, And Punishment In America (1995).

²³⁷✕ See Steven B. Duke & Albert C. Gross, America’s Longest War: Rethinking Our Tragic Crusade Against Drugs (1993).

²³⁸✕ See Hadar Aviram, Cheap On Crime: Recession Era Politics And The Transformation Of American Punishment (2015); David Dagan & Steven M. Teles, Prison Break: Why Conservatives Turned Against Mass Incarceration (2016); The Attorney General’s Smart on Crime Initiative, U.S Dept. Of Just. Archives, https://perma.cc/E4LX-C53Q (last updated Mar. 9, 2017); The Conservative Case for Reform, Right On Crime, https://perma.cc/UWK8-6TPB (last visited Jan. 11, 2021); Sally Q. Yates, Making America Scared Again Won’t Make Us Safer, The Salt Lake Tribune (June 24, 2017), https://perma.cc/BFN5-U9GV.

²³⁹✕ E.g., Honors, at Last, for Ida B. Wells, ‘a Sword Among Lions,’ N.Y. Times (July 31, 2018), https://perma.cc/GH4V-HVMU (“By 1892, however, when Wells turned 30, she had witnessed the passing of those halcyon days and the rise of lynch mobs throughout the South, hanging, burning and beating to death black men who dared stand up for their rights or compete with whites in business.”).

²⁴⁰✕ See Roxanne Jones, That Poll Is Not Just About Whether or Not Trump Is Racist, CNN, https://perma.cc/DZ7C-9JQJ (last updated July 6, 2018, 7:13 PM EDT) (“A new Quinnipiac University poll attempts to shed some light on today’s racial climate. Its findings are surprising -- but they tell more than they at first Seem to . . . . But listen to the next, and last, poll question -- number 52. It asked: ‘Do you think President Trump has emboldened people who hold racist beliefs to express those beliefs publicly or don’t you think so?’ Collectively, 55% of respondents said ‘yes’ while 39% said ‘no,’ with a similar breakdown by demographic.”); David Leonhardt, The Politics of ‘White Threat,’ N.Y. Times (July 31, 2018), https://perma.cc/FZF6-UL8Y; Adam Serwer, Just Say It’s Racist, The Atlantic (June 4, 2018), https://perma.cc/Q7T9-RY4E (discussing how the American press is caught between describing Trumpism accurately and avoiding the wrath of the president and his supporters); Jay Willis, Donald Trump Is Testing How Much Open Racism He Can Get Away With, GQ (Nov. 29, 2017), https://perma.cc/9DBU-ZK2T.

²⁴¹✕ See Isaiah Berlin, Joseph de Maistre and the Origins of Fascism, in The Crooked Timber Of Humanity: Chapters In The History Of Ideas 91–174 (1991); Robert O. Paxton, The Five Stages of Fascism, 70 J. Mod. Hist. 1, 7 (1998) (noting an element of fascism is redemptive violence or “the beauty of violence and of will” devoted to the group’s “success in a Darwinian struggle”); Bump, supra note 157 (noting the contingent and fraught nature of this ideal is put into question by a President who has valorized unwarranted police violence and has unleashed divisive and racist elements in American society that echo the Fascist ideology of violence); Simon, supra note 157 (noting the far-right sentiment is “increasingly visible” in America but Alt-right groups are divided); President’s Task Force, supra note 14 (discussing “Building Trust and Legitimacy” as the first of six “pillars of policing”).

²⁴²✕ See James Cullen & Ames Grawert, Criminal Justice One Year into the Trump Administration, BRENNAN CTR. FOR JUST. 4, 11 (Feb. 8, 2018), https://perma.cc/R7L5-9YH2; Donald Trump and the Undoing of Justice Reform, N.Y. Times (Feb. 17, 2018), https://perma.cc/5KUC-NRL3.

²⁴³✕ Cullen & Grawert, supra note 242, at 5.

²⁴⁴✕ See Lisa L. Miller, The Perils Of Federalism: Race, Poverty And The Politics Of Crime Control (2008) (“Long histories of tensions between police and black neighborhoods in some urban areas also help shape the crime control politics of the locale.”); Priscilla Ocen, Beyond Ferguson: Integrating Critical Race Theory and the “Social Psychology of Criminal Procedure” in The New Criminal Justice Thinking 226, 233–45 (Sharon Dolovich & Alexandra Natapoff eds., 2017).

²⁴⁵✕ See Militarizing The American Criminal Justice System: The Changing Roles Of The Armed Forces And The Police (Peter B. Kraska ed., 2001); Benjamin Levin, Guns and Drugs, 84 FORDHAM L. Rev.. 2173, 2185 (2016) (“Through a range of statutory mechanisms beginning in the 1980s, the federal government armed and militarized state law enforcement to fight drug use and distribution.”).

²⁴⁶✕ See Christian Parenti, Lockdown America: Police And Prisons In The Age Of Crisis 135 (1999) (arguing that the “violent theatrics” of SWAT team arrests, gang sweeps, and other manifestations of paramilitary policing, with their “spectacular displays” of helicopters, guns, dogs, and the like “help insinuate the power of the state into everyday life of the ghetto”); Friedman, Unwarranted, supra note 1, at 51–60, 69–72; Blakeslee, supra note 87, at 201–13.

²⁴⁷✕ Justin George, Trump Has Already Demolished Obama’s Criminal-Justice Legacy, VICE (Jan. 22, 2018), https://perma.cc/VM5G-5KL2

²⁴⁸✕ See generally John F. Pfaff, Locked In: The True Causes Of Mass Incarceration— And How To Achieve Real Reform (2017).

²⁴⁹✕ See Blakeslee, supra note 87 (discussing how early in the Tulia, Texas, prosecutions, defense attorneys could not penetrate a wall of police-prosecutorial secrecy about the background of undercover officer Tom Coleman).

²⁵⁰✕ See Alice Goffman, On The Run: Fugitive Life In An American City (2014); Kathryne M. Young & Joan Petersilia, Keeping Track: Surveillance, Control, and the Expansion of the Carceral State, 129 Harv. L. Rev.. 1318 (2016) (reviewing Charles R. Epp Et Al., Pulled Over: How Police Stops Define Race And Citizenship (2014)).

²⁵¹✕ Young & Petersilia, supra note 250, at 1321; See Butler, supra note 231, at 2178.

²⁵²✕ See Young & Petersilia, supra note 250, at 1323–29.

²⁵³✕ Young & Petersilia, supra note 250, at 1329–37.

²⁵⁴✕ Young & Petersilia, supra note 250, at 1341.

²⁵⁵✕ Rachel Barkow, The Criminal Regulatory State in The New Criminal Justice Thinking 33, 36 (Sharon Dolovich & Alexandra Natapoff eds., 2017).

²⁵⁶✕ Barkow, supra note 255, at 38.

²⁵⁷✕ See Rosa Goldensohn, They Shared Drugs. Someone Died. Does That Make Them Killers?, N.Y. Times (May 25, 2018), https://perma.cc/HZU9-A4VN (discussing opioid users who shared drugs with friends who died of overdoses and were charged and convicted of criminal homicide).

²⁵⁸✕ Barkow, supra note 255, at 39.

²⁵⁹✕ Barkow, supra note 255, at 40–43.

²⁶⁰✕ Barkow, supra note 255, at 46.

²⁶¹✕ See James Forman, Jr., Locking Up Our Own: Crime And Punishment In Black America 9–11 (2017).

²⁶²✕ Id. at 46.

²⁶³✕ Id. at 76. 264 See id. at 60–61.

²⁶⁵✕ See id. at 114.

²⁶⁶✕ Id.

²⁶⁷✕ See generally Miller, supra note 244, at v–vi.

²⁶⁸✕ Jones, supra note 212, at 5–7.

²⁶⁹✕ Jones, supra note 212, at 6.

²⁷⁰✕ Jones, supra note 212, at 7.

²⁷¹✕ Miller, supra note 244, at 5; See Frank J. Thompson, The Rise of Executive Federalism: Implications for the Picket Fence and IGM, 43(1) AM. REV. PUB. ADMIN. 3 (2013) (noting that the picket fence metaphor may be replaced by executive federalism, which emphasizes a power shift from legislative to executive, an expanded role of political executives in administration of grant programs, and the role of waivers of federal grant requirements in domestic policies).

²⁷²✕ Miller, supra note 244, at 6.

²⁷³✕ Miller, supra note 244, at 95 (noting that in comparison 39.1% of witnesses represented criminal justice agencies and organizations and 18.7% represented professional associations).

²⁷⁴✕ See Emily Conners & Marissa Meyers, Death or Reincarnation? The Story of ACORN, NPQ (Feb. 10, 2015), https://perma.cc/5EZT-FMJH (noting that ACORN was targeted by right-wing activists and, after a hyped-up scandal, dissolved in 2010); Betty Reid Mandell, Review: The Rise and Fall of ACORN, 13 New politics 1 (Winter 2012).

²⁷⁵✕ See Miller, supra note 244, at 69.

²⁷⁶✕ Miller, supra note 244, at 108.

²⁷⁷✕ Miller, supra note 244, at 6. 278 Miller, supra note 244, at 107.

²⁷⁹✕ Miller, supra note 244, at 107.

²⁸⁰✕ Miller, supra note 244, at 107–08.

²⁸¹✕ Miller/, supra note 244, at 108.

²⁸²✕ Miller, supra note 244, at 20.

²⁸³✕ Miller, supra note 244, at 6.

²⁸⁴✕ Miller, supra note 244, at 20.

²⁸⁵✕ See Matthew Stewart, The 9.9 Percent Is the New American Aristocracy, The Atlantic (June 2018), https://perma.cc/P3XL-TXC9 (discussing a view of the middle class—the 9.9%— as its own cocooned elite, immune from concern for the poor by its meritocratic myth).

²⁸⁶✕ Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on Extreme Poverty and Human Rights, UNITED NATIONS HUM. RIGHTS ¶ 7 (Dec. 15, 2017), https://perma.cc/3PEP-3QWT [hereinafter Statement on Visit to the USA].

²⁸⁷✕ Angus Deaton, The U.S. Can No Longer Hide from Its Deep Poverty Problem, N.Y. Times (Jan. 24, 2018), https://perma.cc/JZ82-FGGX.

²⁸⁸✕ Id.

²⁸⁹✕ See Nick Reding, Methland: The Death And Life Of An American Small Town (2010) (noting that the same economic forces gave rise to the “meth” crisis of the 1980s); Katherine M. Keyes et al., Understanding the Rural–Urban Differences in Nonmedical Prescription Opioid Use and Abuse in the United States, 104 AM. J. PUB. HEALTH, No. 2, Feb. 2014, at e52 (stating that economic deprivation and inequality are factors that contribute to the current opioid epidemic); PARENTI, supra note 246, at 211–44.

²⁹⁰✕ See David Leonhardt, For Wages, a Trump Slump, N.Y. Times (Aug. 5, 2018), https://perma.cc/74RL-E8FW.

²⁹¹✕ See Eugene Robinson, In Prison Reform, a Little of Something Is Better Than a Lot of Nothing, Wash.. Post (May 28, 2018), https://perma.cc/9TNW-4P9N (discussing how the House-passed First Step Act, supported by Jared Kushner, President Trump’s son-inlaw/ advisor, is stalled in the Senate and would do nothing to reduce sentences); Cullen & Grawert, supra note 242, at 9 (stating that under DOJ guidance, a rising federal prison population is projected).

²⁹²✕ See Zhen Zeng, Jail Inmates in 2016, Bureau Of Just. Statistics (Feb. 22, 2018), https://perma.cc/C46B-Z84C (stating that jail custody populations rose from 621,000 in 2000 to a high of 785,000 in 2008; the population declined to 727,000 in 2015 but rose to 740,000 in 2016.).

²⁹³✕ See Danielle Kaeble & Mary Cowhig, Correctional Populations in the United States, 2016, Bureau Of Just. Statistics (Apr. 26, 2018), https://perma.cc/5YLW-FLT9 (stating that the total correctional population was 6.46 million in 2000 and 6.61 million at year end 2016; Probation: 3.84 million in 2000, 3.67 million in 2016; Parole: 725,000 in 2000, 874,000 in 2016).

²⁹⁴✕ George, supra note 247 (“The private prison industry saw a quick turnaround with the election of Trump.”).

²⁹⁵✕ Statement on Visit to the USA, supra note 286, at ¶ 7 (“By most indicators, the US is one of the world’s wealthiest countries. It spends more on national defense than China, Saudi Arabia, Russia, United Kingdom, India, France, and Japan combined. US health care expenditures per capita are double the OECD average and much higher than in all other countries . . . . The US has the highest prevalence of obesity in the developed world.”).

²⁹⁶✕ Or even the middle or not-so-middle class. In my state, potholes, which shift costs of road repairs to car owners for vehicle repairs, are a major issue in the 2018 elections. Last semester one of my students (Wayne State University undergraduates tend to be working class and almost all hold down jobs) had a meltdown when, after being repeatedly tardy for class, she suffered major pothole damage to her new car that she hoped would get her to the class on time.

²⁹⁷✕ See Jared Bernstein, Why Real Wages Still Aren’t Rising, N.Y. Times (July 18, 2018), https://perma.cc/P6LM-4AV7.

²⁹⁸✕ See Statement on Visit to the USA, supra note 286, at ¶ 4 (“I witnessed a San Francisco police officer telling a group of homeless people to move on but having no answer when asked where they could move to.”). See generally Matthew Desmond, Evicted: Poverty And Profit In The American City (2016).

²⁹⁹✕ See, e.g., Statement on Visit to the USA, supra note 286, at ¶¶ 4–5.

³⁰⁰✕ See Tara Siegel Bernard, ‘Too Little Too Late’: Bankruptcy Booms Among Older Americans, N.Y. Times (Aug. 5, 2018), https://perma.cc/4576-YEVQ.

³⁰¹✕ See Paula Duarte, Threats to SNAP and WIC by Trump Administration’s Proposed Budget, Cuny Urban Food Pol’y Inst. (May 14, 2018), https://perma.cc/8W3T-J9ZJ (“President Trump is proposing a 30% cut to nutrition programs including SNAP and WIC, a total cut of $213.5 billion over 10 years. It will restructure how benefits are given and will reduce eligibility for millions of Americans. This is especially relevant since SNAP benefits 44 million people each month.”); Hunger in the News January 2018, Feeding America (Jan. 26, 2018), https://perma.cc/6DGN-89WV (“41 million Americans struggle with hunger, a number nearly equal to the 40.6 million officially living in poverty.”).

³⁰²✕ See Statement on Visit to the USA, supra note 286, at ¶ 4 (“I saw sewage filled yards in states where governments don’t consider sanitation facilities to be their responsibility.”).

³⁰³✕ See Bill Mitchell, In Detroit, Water Crisis Symbolizes Decline, and Hope, Nat’l Geographic (Aug. 22, 2014), https://perma.cc/B7W9-2DT5 (thousands of poor people in arrears on bills had water service cut off); Flint Water Crisis, Wikipedia, https://perma.cc/PW52-QE2D (last visited Jan. 13, 2021).

³⁰⁴✕ See generally Butler, supra note 231, at 2192.

³⁰⁵✕ See Morone, supra note 112, at 1.

³⁰⁶✕ Ron Chernow, Alexander Hamilton 326, 328 (2004) (describing the resolution of the most contentious issues in 1790, the location of the capital and the federal assumption of the states’ war debts, culminating in “the most celebrated meal in American history,” at which Jefferson and Hamilton, attended by Madison “and perhaps one or two others,” resolved these momentous issues in a grand bargain, locating the U.S. capital on the Potomac River not far from Mount Vernon and the assumption of debt).

³⁰⁷✕ See generally Hall, supra note 222, at 87–105.

³⁰⁸✕ See Eric Foner, Free Soil, Free Labor, Free Men: The Ideology Of The Republican Party Before The Civil War 9–10 (1970).

³⁰⁹✕ See generally Morone, supra note 112, at 74–94.

³¹⁰✕ See Sidney Fine, Laissez Faire And The General-Welfare State: A Study Of Conflict In American Thought, 1865-1901, at 167–68 (1964).

³¹¹✕ See generally William C. Berman, America’s Right Turn: From Nixon To Clinton 85–118 (2d ed. 1998); David M. Kennedy, Freedom From Fear: The American People In Depression And War, 1929-1945, at 363–80 (1999).

³¹²✕ The Transformation Of American Politics: Activist Government And The Rise Of Conservatism (Paul Pierson & Theda Skocpol eds., 2007).

³¹³✕ See generally Thomas Janoski, Citizenship And Civil Society: A Framework Of Rights And Obligations In Liberal, Traditional, And Social Democratic Regimes 17– 24, 33–42 (1998).

³¹⁴✕ See Janoski, supra note 313, at 23 tbl.1.1, 34–35 tbl.2.3 & 2.4, 36 tbl.2.5, 40 tbl.2.6.

³¹⁵✕ See Janoski, supra note 313, at 23 tbl.1.1, 34–35 tbl.2.3 & 2.4, 36 tbl.2.5, 40 tbl.2.6.

³¹⁶✕ See Janoski, supra note 313, at 23 tbl.1.1, 34–35 tbl.2.3 & 2.4, 37 tbl.2.5, 41 tbl.2.6.

³¹⁷✕ See Janoski, supra note 313, at 23 tbl.1.1, 34 tbl.2.3, 37 tbl.2.5, 41 tbl.2.6.

³¹⁸✕ See Janoski, supra note 313, at 19 tbl.1.3.

³¹⁹✕ Janoski, supra note 313, at 34 tbl.2.3. See generally James Q. Whitman, Harsh Justice: Criminal Punishment And The Widening Divide Between America And Europe 3–17 (2003) (discussing the cultural roots for the gap between American and European punishment).

³²⁰✕ See Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword 26, 46–47 (1996).

³²¹✕ See generally Joseph E. Stiglitz, The Price Of Inequality: How Today’s Divided Society Endangers Our Future 138–45 (2012) (explaining that this occurred at a time of staggering income inequality).

³²²✕ See Richard Hofstadter, The Paranoid Style In American Politics (1965); Lewis Beale, Paranoia Crept into American Political Life a Long Time Ago, The Daily Beast (OCT. 19, 2014), https://perma.cc/BQK7-3EMV; Douglas LaBier, Why Tea Party/Republican Ideology Is Rooted in Fears of a Transforming America, Psychology Today (Apr. 12, 2011), https://perma.cc/4ZCH-C9TV (explaining that Tea Party policies are driven by fear generated by major transformations, and characterized by irrational policy advocacy, antiscience as a virtue, glorifying ignorance, valorizing American exceptionalism as a theological dogma, views government as the enemy, generation of conspiracy theories).

³²³✕ See generally Michael Kazin, American Dreamers: How The Left Changed A Nation (2011).

³²⁴✕ See Zalman, Integrated Model, supra note 6, at 1479–81; Norris, supra note 109, at 81– 82.

³²⁵✕ See Paul G. Cassell, Tradeoffs Between Wrongful Convictions and Wrongful Acquittals: Understanding and Avoiding the Risks, 48 Seton Hall L. Rev.. 1435, 1446–47 (2018); Wilkinson, supra note 103, at 1156; Norris, supra note 109, at 156–60 (explaining there is, nevertheless, an ideological slant to views with more or less conservative jurists downplaying the implications of wrongful convictions). Contra Marvin Zalman, A Brief Reply to Professor Cassell, 48 SETON HALL L. Rev.. 1493, 1496 (2018).

³²⁶✕ Experts in diplomacy and comparative government have sounded alarm bells about the risks of impending autocracy here. See, e.g., Madeleine Albright, Fascism: A Warning (2018); Steven Levitsky & Daniel Ziblatt, How Democracies Die (2018).

³²⁷✕ See Jane Mayer, Dark Money: The Hidden History Of The Billionaires Behind The Rise Of The Radical Right (2016). Big money also contributes to the liberal side of the equation. See Scott Bland, George Soros’ Quiet Overhaul of the U.S. Justice System, Politico (Aug. 30, 2016), https://perma.cc/2NGL-V3MF; Paige St. John & Abbie Vansickle, Here’s Why George Soros, Liberal Groups Are Spending Big to Help Decide Who’s Your Next D.A., L.A. Times (May 23, 2018), http://www.latimes.com/local/california/la-me-prosecutor-campaign- 20180523-story.html; Michael Steinberger, George Soros Bet Big on Liberal Democracy. Now He Fears He Is Losing, N.Y. Times (July 17, 2018), https://perma.cc/5KUF-WSRJ.

³²⁸✕ Thomas E. Mann & Norman J. Ornstein, It’s Even Worse Than It Looks: How The American Constitutional System Collided With The New Politics Of Extremism 131 (2012).

³²⁹✕ Jefferson Beauregard Sessions III, Attorney Gen. of the U.S., U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks to the Gatlinburg Law Enforcement Training Conference (May 8, 2018), (transcript at https://perma.cc/B4PN-YWNL) (“My best judgement [sic] is that working together we have an historic opportunity to make our country better, safer, and more prosperous. We don’t come to this conference with a blank slate. We are experienced. We are professional. We are trained to do that which the times demand. The problem is that we got away from the proven policies that reduced crime all over this country: community-based policing, incarcerating serious repeat criminals, new technologies, more officers, and more prosecutors. The war on crime and drugs did not fail. It was a roaring success. The success came as a direct result of rejecting the criticism and policies of the progressive left. The country gave its attention to the American people and crime victims for a change. High school drug use rates and homicide rates fell by half after the dreamland policies of the fuzzy-headed left were rejected, and sound professional policies were adopted.”).

³³⁰✕ The Conservative Case for Reform, supra note 238.

³³¹✕ The Conservative Case for Reform, supra note 238.

³³²✕ See supra text accompanying note 106. See generally MAYER, supra note 327, at 123, 151, 180, 204 (making the following points regarding the Koch brothers’ involvement with and attempts to roll back environmental regulations: (1) “It’s difficult to disentangle Charles[] [Koch’s] philosophical opposition to regulation from his financial interest in avoiding them.” (2) Koch Industries was convicted of the felony of “concealment of information” about benzene emissions and paid $10 million in fines. (3) David Koch’s philanthropy is selfserving in eyes of critics. (4) The Koch brothers are opposed to the idea of climate change). But See generally Mila Sohoni, The Idea of “Too Much Law,” 80 Fordham. L. Rev.. 1585 (2012) (offering a thoughtful counterargument to the “hyperlexis” panic).

³³³✕ See generally, e.g., Dale Maharidge, Bumpy Ride: Why America’s Roads Are in Tatters, HARPER’S MAGAZINE 57–62 (Nov. 2017), https://perma.cc/3P5R-HGRW.

³³⁴✕ See Noah Smith, Trump’s Tax Cut Hasn’t Done Anything for Workers, Bloomberg, https://perma.cc/QNU7-9AYW (last updated Aug. 3, 2018, 12:56 PM EDT).

³³⁵✕ See, e.g., Robert Henneke, TPPF: Texas AG Right to Warn San Antonio Against Paid Sick Leave Ballot Measure, Tex. Pub. Pol’y Found. (July 10, 2018), https://perma.cc/MJ4S-ZEED (discussing TPPF’s opposition to the City of Austin’s paid sick leave policy, which is significant to Friedman’s democratic policing agenda as it is based on the trend in red states for the state government to preempt local legislation; City Rights in an Era of Preemption: A State-by-State Analysis, Nat’l League Of Cities 1 (2017), https://perma.cc/9MR2-LC5J (“Consistently, state legislators have stricken down laws passed by city leaders in four crucial areas of local governance: economics, social policy, health and safety.”).

³³⁶✕ See FINE, supra note 310, at 167–68; Berman, supra note 311, at 85–86.

³³⁷✕ Stiglitz, supra note 321, at 4–6.

³³⁸✕ Perhaps abetted by tax evasion through the use of tax havens, although that Seems to be more European than American problem. See Gabriel Zucman, The Hidden Wealth Of Nations: The Scourge Of Tax Havens 34–65 (2015) (estimating tax evasion through tax havens 8% worldwide; 4% for the United States).

³³⁹✕ See Ross Douthat, Anthony Kennedy’s Imperial Legacy, N.Y. Times (June 30, 2018), https://perma.cc/B79F-TYUA (“In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists . . . .” ); Greg Weiner, Congress Doesn’t Seem to Know Its Own Strength, N.Y. Times (June 21, 2018), https://perma.cc/46TK-WZ76 (“This is what Congress, the first branch of government and the center of the constitutional regime, has become: an institutional supplicant that urges the other branches of government to do what it could do itself.”); Mann & Ornstein, supra note 328.

³⁴⁰✕ See Kathleen Gray & Paul Egan, Michigan Supreme Court Says Let Voters Decide Gerrymandering Proposal, Detroit Free Press, https://perma.cc/Z72G-5E74 (last updated Aug. 1, 2018) (commenting that in a 4–3 decision the Michigan Supreme Court has allowed a “gerrymandering” referendum proposal to appear on the statewide 2018 ballot to determine whether voting districts will be created by a citizen’s commission).

³⁴¹✕ See, e.g., Samuel Walker, A Critical History Of Police Reform: The Emergence Of Professionalism 132–34 (1977) [hereinafter, Walker, Critical History]; Richard A. Leo, The Third Degree and the Origins of Psychological Interrogation in the United States, in Interrogations, Confessions, And Entrapment 37–84 (describing specific abuses at 42– 51) (G. Daniel Lassiter ed., 2004) [hereinafter Leo, Third Degree]; Leo, supra note 120, at 41– 77.

³⁴²✕ See Eric H. Monkkonen, The Dangerous Class: Crime And Poverty In Columbus, Ohio, 1860-1885, at 4 (1975) (stating that a thesis social historians could explore is whether the third degree was a product of urbanization, and “needed” to protect the growing middle class from the “dangerous class,” a nineteenth century concept that included urban criminals, rural criminals, urban paupers, rural paupers, and tramps); Leo, Third Degree, supra note 341, at 52–53; Walker, Critical History, supra note 341, at 15–16.

³⁴³✕ See Weeks v. United States, 232 U.S. 383, 392 (1914) (“The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”)(emphasis added), incorporated by Mapp v. Ohio, 367 U.S. 643 (1961); Leo, supra note 120, at 68; Leo, Third Degree, supra note 341, at 53.

³⁴⁴✕ See Leo, supra note 120, at 69.

³⁴⁵✕ See Comm’n On Law Observance & Enforcement, Report On Lawlessness In Law Enforcement (1931) (featuring the following authors who were prominent civil libertarians: Walter Pollak, Zechariah Chaffee, Jr., and Carl Stern).

³⁴⁶✕ See Records Of The Wickersham Commission On Law Observance And Enforcement: Part I. Records Of The Committee On Official Lawlessness ix (1997) [hereinafter Committee Records On Official Lawlessness] (explaining that the survey conducted by the authors of the Report on Lawlessness “was national in scope, with detailed evidence from fifteen cities across the country. Only the southeastern region was not represented . . . .”); Leo, Third Degree, supra note 341, at 133 (“Only a few cities managed to keep misconduct under control.”).

³⁴⁷✕ See Leo, Third Degree, supra note 341, at 56, 134. The findings of Wickersham Commission report were made available to the public in a popular book that drew both on the author’s independent research and on the report: Ernest Jerome Hopkins, Our Lawless Police (1931).

³⁴⁸✕ See Leo, Third Degree, supra note 341, at 54.

³⁴⁹✕ Samuel Walker, The Engineer as Progressive: The Wickersham Commission in the Arc of Herbert Hoover’s Life and Work, 96 Marq. L. Rev.. 1165, 1185 (2013) (“The report arrived at a propitious moment in the history of police reform. In the 1930s, a new generation of reform police chiefs was coming to the fore and began taking the police professionalization movement to a new level.”); See Leo, supra note 120, at 71 (commenting that the FBI under J. Edgar Hoover banned third degree methods); Leo, Third Degree, supra note 341, at 56 (explaining how damage control was also in play: “The graphic revelations of routine police misconduct represented a threat to the institutional legitimacy of police. Police administrators, chiefs and supporters quickly realized the need to eliminate flagrant abuses in order to enhance their status among the public.”).

³⁵⁰✕ See Fred E. Inbau Et Al., Criminal Interrogation And Confessions (5th ed. 2013); Leo, Third Degree, supra note 341, at 37, 57–64. See generally John E. Reid & Associates, Inc., https://perma.cc/NM75-45LF (last visited Dec. 18, 2020). The first manual adopted was W. R. Kidd, Police Interrogation (1940), and the most prominent was Fred E. Inbau, Lie Detection And Criminal Interrogation (1942), which went into multiple editions and became a foundation of the most prominent training company, John E. Reid & Associates, Inc.

³⁵¹✕ Leo, supra note 120, at 72.

³⁵²✕ Committee Records On Official Lawlessness, supra note 346, at x.

³⁵³✕ Brown v. State of Mississippi, 297 U.S. 278 (1936).

³⁵⁴✕ Miranda v. State of Arizona, 384 U.S. 436, 448 (1966).

³⁵⁵✕ See William A. Westley, Violence And The Police: A Sociological Study Of Law, Custom, And Morality vii (1970). By the time his doctoral dissertation was published in 1970, Westley stated that the “book looks back some twenty years to a different time” suggesting that policing may have changed significantly.

³⁵⁶✕ See Leo, Third Degree, supra note 341, at 40.

³⁵⁷✕ Leo, Third Degree, supra note 341, at 41.

³⁵⁸✕ See David L. Strauss, Barbarous Souls (2010) (reflecting an early application of the Reid technique as a manipulative way to generate a false confession). See generally Leo, supra note 120.

³⁵⁹✕ See generally James L. Trainum, How The Police Generate False Confessions: An Inside Look At The Interrogation Room (2016); Marvin Zalman et al., Beyond Police Compliance with Electronic Recording of Interrogation Legislation: Toward Error Reduction, CRIM. JUST. POL. Rev.. (July 17, 2017), https://perma.cc/TN25-KLPP.

³⁶⁰✕ See Norbert Elias, The Civilizing Process (Eric Dunning et al., eds., Edmund Jephcott, trans., Blackwell Publishing, Ltd. rev. ed. 2000) (originally published by Elias in 1939 in The History of Manners and State Formation and Civilization, the Civilizing Process is a reprint of these works which apply sociological insights to historical phenomena. The first related the development of individual behaviors in western society over a period of centuries in a process defined as civilizing and the second linked the process of state formation from feudal Europe to consolidated nation-states to this civilizing process.).

³⁶¹✕ See, e.g., Aaron Copland, Fanfare for the Common Man (1942); Fanfare for the Common Man, Wikipedia, https://perma.cc/F2TU-9CJD (“[It] was inspired in part by a speech made earlier that year by then American Vice President Henry A. Wallace, in which Wallace proclaimed the dawning of the ‘Century of the Common Man.’”) (last visited Dec. 18, 2020).

³⁶²✕ See Timothy Snyder, Bloodlands: Europe Between Hitler And Stalin 39–40, 370 (2010) (noting that even in Stalin’s Russia, the exuberant bloody-mindedness and ideological fervor that sustained the hideous Ukrainian Great Famine and mass starvation of 1932–1933 gave way to the bureaucratized autocracy of Stalin’s last years when enemies had to be eliminated by careful retail action and security officers “Seemed hesitant to commit excesses in the first place”).

³⁶³✕ See Lee, supra note 124, at 631–33 (“It Seems that we have reached a point of crisis in policing. Every month, sometimes every week, we hear about yet another police shooting involving a victim who, often, is Black.”).

³⁶⁴✕ See Merton, Social Theory, supra note 224; Merton, Unanticipated Consequences, supra note 224, at 894–95.

³⁶⁵✕ E.g., Wilkinson, supra note 103, at 1156.

³⁶⁶✕ See Cynthia Lum & Daniel S. Nagin, Reinventing American Policing, 46 CRIME & JUST. 339 (2017).

³⁶⁷✕ See generally Toch, Cop Watch, supra note 137 (reviewing the history of police reform, especially in the era of new digital communication).

³⁶⁸✕ See Hans Toch, Wikipedia, https://perma.cc/EK9P-MAY7 (last visited Dec. 18, 2020).

³⁶⁹✕ See generally Hans Toch, Peacekeeping: Police, Prisons, And Violence (1976) [Hereinafter Toch, Peacekeeping].

³⁷⁰✕ The challenges of street policing are especially acute when a confrontation between an officer and a civilian expands into a “crowd scene,” where officers attempt to maintain face in trying situations. See William Ker Muir, Police: Street Corner Politicians 101–25 (1977).

³⁷¹✕ For the 1960s, Toch drew on “incident centered interviews” that he and fellow researchers conducted, using them to explore three “principal concerns of the choruses of the period”: unjust/unfair police interventions, police brutality or disproportionate force, and discrimination. See Toch, Cop Watch, supra note 137, at 14–15.

³⁷²✕ See Toch, Cop Watch, supra note 137, at 1–73.

³⁷³✕ See Toch, Cop Watch, supra note 137, at 79–80.

³⁷⁴✕ Toch, Cop Watch, supra note 137, at 80.

³⁷⁵✕ See supra text accompanying notes 253–66.

³⁷⁶✕ See Toch, Cop Watch, supra note 137, at 81.

³⁷⁷✕ See supra text accompanying notes 137–64.

³⁷⁸✕ See Toch, Cop Watch, supra note 137, at 81.

³⁷⁹✕ See Toch, Cop Watch, supra note 137, at 83.

³⁸⁰✕ See generally John Bryan Starr, Understanding China: A Guide To China’s Economy, History, And Political Culture 85–94 (2010) (helping to explain the prevalence of demonstrations and riots in China’s autocratic party-state); Zalman, Riot Act, supra note 125 (discussing Congressional response to political dissent expressed by riots throughout the 1960s).

³⁸¹✕ Toch, Cop Watch, supra note 137, at 82–90.

³⁸²✕ Toch, Cop Watch, supra note 137, at 91–108 (noting that the incident occurred on June 15, 2010).

³⁸³✕ See generally Toch, Cop Watch, supra note 137, at 109–18, 125–30 (noting that the incident occurred on Aug. 30, 2010).

³⁸⁴✕ Toch, Cop Watch, supra note 137, at 118–24 (noting that the incident occurred during the time that the woodcarver incident was being reviewed).

³⁸⁵✕ Worden & Mclean, supra note 151, at 182.

³⁸⁶✕ Toch, Cop Watch, supra note 137, at 97.

³⁸⁷✕ See Toch, Cop Watch, supra note 137, at 98.

³⁸⁸✕ See Toch, Cop Watch, supra note 137, at 98–101.

³⁸⁹✕ See Toch, Cop Watch, supra note 137, at 101.

³⁹⁰✕ Toch, Cop Watch, supra note 137, at 102.

³⁹¹✕ Toch, Cop Watch, supra note 137, at 103.

³⁹²✕ Toch, Cop Watch, supra note 137, at 105.

³⁹³✕ See Toch, Cop Watch, supra note 137, at 106–07.

³⁹⁴✕ See Toch, Cop Watch, supra note 137, at 109–18, 125–35.

³⁹⁵✕ See generally Sydney Brownstone & Steven Hsieh, Judge Finds SPD in “Full and Effective Compliance” with Consent Decree, The Stranger (Jan. 10, 2018), https://perma.cc/6A4WMKXU (discussing the 2017 Consent Decree relating to stop and frisk); Tenth Systematic Assessment: Stops, Search & Seizure, Seattle Police Monitor (June 2017), https://perma.cc/6686-3QCQ (same).

³⁹⁶✕ Toch, Cop Watch, supra note 137, at 137.

³⁹⁷✕ See Toch, Cop Watch, supra note 137, at 122, 136 (comparing officers’ comments).